Nationalism, Statism and Cosmopolitanism Criticisms of nationalism are commonplace.

Some critics contend that nationalism is a dead or dying force; others argue that it is a dangerous, violence-prone and destabilizing one. Some criticisms of nationalism object primarily to its tendency to upset existing international boundaries: this is the perspective of statism. Other, more fundamental criticisms argue, e.g., that the organization of the international community into nation-states is inadequate to solve the most urgent transnational collective action problems; that the nation-state is no longer the appropriate unit for making policy decisions that have global effects; or that nationality neither can or should provide the overriding focus either of personal identity or of political loyalty: this is the cosmopolitan perspective. This essay argues for a more balanced account. On any reckoning, nationalism remains a significant factor in world affairs. It may well be on the rise in major states like China or Russia; and even in the West, supra-national projects like the European Union have encountered unexpected roadblocks. Furthermore, demands for separate statehood by minority nationalities remain understandably powerful, as the recent cases of Kosovo and South Sudan demonstrate; the international environment continues to be favorable to the emergence of new states; and especially when national minorities are at risk of persecution or oppression, the international community should be sympathetic to their demands for political sovereignty. In the past, nationalism has often been an emancipating and ennobling force; and, in the right circumstances, it can again be so in the future. Rather than fearing or condemning it uncritically, the global community and the international legal system should be prepared, in appropriate cases, to welcome and encourage it.
Robert J. Delahunty Assoc. Professor of Law Univ. of St. Thomas School of Law

Introduction: Nationalism and Its Critics

Nationalism gets a bad press. Generally speaking, the criticisms are of two (somewhat inconsistent) kinds: nationalism is portrayed either as a declining force or as a dangerous one. Thus, some critics contend that nationalism no longer represents a significant consideration in world affairs. 1 Such criticisms may be based on, e.g., the claim that the world-historical mission of nationalism has been completed because most of the planet has already been divided up into states
1

The British historian Eric Hobsbawm asserts, e.g., that nationalism is declining as a vector of historical change. Eric J. Hobsbawm, Nations and nationalism since 1780: Programme, myth, reality 163 (2d ed. 1992). It is puzzling (if also revealing) that Hobsbawm should assume that, e.g., Chinese nationalism is not a rising historical force. See, e.g., Suisheng Zhao, Chinese Nationalism and its International Orientations, 115 Pol. Sci. Q. 1 (2000). 1

that are approximately coterminous with the nations or peoples that inhabit them. 2 More often, perhaps, nationalism is acknowledged to be continuing force, but presented as a dangerous and violence-prone one, likely to lead to ethnic conflict, civil or international war, or even genocide. 3 Whether the subject be India, 4 Russia, 5 or Holland, 6 nationalism is often an object of fear or derision. As a leading scholar of Chinese nationalism put it, nationalism is often regarded as an emotional and irrational manifestation of primordial sentiments, fueling the destructive warfare of the first half of the twentieth century and the bloody and tragic ethnic conflicts in the former Yugoslavia and the Balkans after the end of the Cold War. 7 Criticisms of these kinds come from many respectable sources. The British political theorist John Dunn voiced an entirely representative opinion when he said: Nationalism is the starkest political shame of the twentieth century, the deepest, most intractable and yet most unanticipated blot on the political history of the world since the year 1900. 8 Another British political theorist, John Keane, wrote that [a]t the heart of the ideology of nationalism and among the most peculiar features of its grammar is its simultaneous treatment of its opponents as everything and nothing. Nationalists, strictly defined . . . suffer from a judgement disorder that convinces them that Other nations live at their own expense. Nationalism is also arrogant,

See Kwame Anthony Appiah, Cosmopolitan Patriotism, in Joshua Cohen (ed.), For Love of Country: Debating the Limits of Patriotism 21, 26 (1996). 3 For example, Mark Levene argues that late-comers in international competition among nation-states (such as Germany, Japan, Russia, or China) have sought to overcome their vulnerabilities by accelerating the process of modernization, leading them in some cases to promote forms of ethnic nationalism that tend towards genocide. See Mark Levene, The Meaning of Genocide: Genocide in the Age of the Nation State 174202 (2005). 4 See Martha C. Nussbaum, The Clash Within: Democracy, Religious Violence, and Indias Future (2009). 5 See Edward Lucas, The New Cold War: Russia and the Threat to the West 14 (2008). 6 See Ian Buruma, Murder in Amsterdam: Liberal Europe, Islam, and the Limits of Tolerance (2006). 7 Suisheng Zhao, A Nation-State by Construction: Dynamics of Modern Chinese Nationalism 6 (2004). 8 Quoted in Anthony D. Smith, The Nation in History: Historiographical Debates about Ethnicity and Nationalism 15 (2000). 2

confidently portraying the Other as a worthless zero, as inferior rubbish. 9 Even a sympathetic student of nationalism like Tom Nairn could write that Nationalism is the pathology of modern developmental history, as inescapable as neurosis in the individual, with much the same essential ambiguity attaching to it, a similar built-in capacity for descent into dementia, rooted in the dilemmas of helplessness thrust upon most of the world . . . and largely incurable. 10 Legal scholars form part of this consensus. Martha Nussbaum affirms that at bottom, nationalism and ethnocentric particularity are not alien to one another, but akin -- . . . to give support to nationalist sentiments subverts, ultimately, even the values that hold a nation together, because it substitutes a colorful idol for the substantive universal values of justice and right. 11 Rosa Ehrenreich Brooks welcomes the demise of the nation-state, holding it to be form of political organization responsible for countless atrocities and suited, at best, to the industrial era. 12 A leading casebook in international law, edited by some of the most distinguished scholars in the field, seems to collapse nationalism into ethnically based and exclusionary conceptions of community, and finally into a new tribalism. 13 Not all evaluations of nationalism are as critical (and undiscriminating) as these. Writers sometimes draw distinctions, both analytical and normative, between civic nationalism and ethnic nationalism. The former, epitomized by nation-states such as the United States and
John Keane, Vclav Havel: A Political Tragedy in Six Acts 450(2000). Quoted in Benedict Anderson, Imagined Communities: Reflections on the Origin and Spread of Nationalism 5 (rev. ed. 2006). 11 Martha Nussbaum, Patriotism and Cosmopolitanism, in Joshua Cohen (ed.), For Love of Country: Debating the Limits of Patriotism 5 (1996). 12 Rosa Ehrenreich Brooks, Failed States, or the State as Failure, 72 U. Chi. L. Rev. 1159, 1173 (2005) ([T]he history of the state is a history of repression and war. As states expanded they consumed or trampled on other, weaker social systems; as they vied for dominance they sent millions to be slaughtered on battlefield after battlefield; and as they sought to create unified national cultures they cannibalized their own citizens, a process that reached its terrible apotheosis in the Nazi states genocidal acts.). 13 Lori Fisler Damrosch, Louis Henkin, Richard Crawford Pugh, Oscar Schachter and Hans Smit (eds.), International Law: Cases and Materials 269 (4th ed. 2001) (The rhetoric of self=determination has been deployed in attempts to align statehood with nationalism, with ethnically based and exclusionary conceptions of community -- what some have called a new tribalism.)
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France, is conventionally judged to be altogether superior to the latter, which was associated, at least originally, with the states of Central and Eastern Europe. 14 Very roughly, civic nationalism is characterized as liberal, voluntaristic, universalist and inclusive: thus, being an American is taken to be a matter of belonging to a political community whose membership rules permit nonmembers to join (or leave) without regard to lineage. 15 Thus, the novelist and poet Robert Penn Warren wrote: To be an American is not . . . a matter of blood; it is a matter of an idea. 16 Ethnic nationalism by contrast is ordinarily characterized as illiberal, ascriptive, particularist and exclusionary, a community of fate 17 based on blood and lineage or at least on a common language, history and culture, and not a community of choice that one may enter or leave at will. One great student of nationalism, J.L. Talmon, put it starkly: Nationality in the West (west of Germany) means your passport. In Central and Eastern Europe. . . it means ultimately your race. 18
Credit for introducing the civic/ethnic distinction is usually given to the historian Hans Kohn, who explained it in terms of Western and Eastern European patterns of state-formation. See Hans Kohn, The Ideal of Nationalism: A Study in its Origins and Background (1944); see alsoTaras Kuzio, The Myth of the Civic State: A Critical Survey of Hans Kohns Framework for Understanding Nationalism, 25 Ethnic & Racial Stud. 20 (2002); Ken Wolf, Hans Kohns Liberal Nationalism: The Historian as Prophet, 37 J. Hist. Ideas 651, 666 (1976); see generally Anthony W. Marx, Faith in Nation: Exclusionary Origins of Nationalism 115-17 (2003). 15 For such an account, see, e.g., F.H. Buckley, Liberal Nationalism, 48 UCLA L. Rev. 221, 237-39 (2000/01). 16 Quoted in id. at 238. Carrying this model further, there have been calls for citizenship in the European Union (EU) to be based purely on a commitment to the ideas and values expressed in the constitutional documents of that entity, decoupled not only more specific forms of national citizenship but also from any sense of a shared European identity, culture or history. See J.H.H. Weiler, The Constitution of Europe: Do the New Clothes Have an Emperor? and Other Essays on European Integration 344 (I999) (discussing the creation of a European demos understood in civic and political rather than ethno-cultural terms). 17 The characterization of the nation as a community of fate originated with the Austrian Social Democrat Otto Bauer. See Walter Laqueur, A History of Zionism from the French Revolution to the Establishment of the State of Israel 422 (1972). Yael Tamir explains the idea as follows: Members of such a community [of common descent and fate] see themselves sharing a common destiny and view their individual success and well-being as closely dependent on the prosperity of the group as a whole. They relate their selfesteem and their accomplishments to the achievements of other group members and take pride in the groups distinctive contributions. Consequently, they develop feelings of caring and duty toward one another. These feelings are exclusive and apply to members only. Yael Tamir, Review Article: the Enigma of Nationalism, 47 World Politics 418, 425 (1995). 18 J.L. Talmon, The Unique and the Universal 21 (1965). 4
14

Yet when pressed, the distinction between civic and ethnic nationalism (which originated during the Second World War and was used on behalf of the Allied cause 19) has tended to dissolve. 20 Further, to the extent that the distinction is tenable, it is problematic whether civic nationalism alone is sufficient to bind a nation together and sustain democratic practices. 21 Finally, civic nationalism suffers from its own characteristic normative deficiencies, especially in relation to the protection of minorities. 22 Even the promising distinction between civic and ethnic nationalism, therefore, seems insufficient to answer the most vehement critics of nationalism.

See Hedva Ben Israel, Talmon on nationalism, 34 Hist. Eur. Ideas 189, 191 (2008). This is demonstrated in a superb essay by Rogers Brubacker. See Rogers Brubacker, The Manichean Myth: Rethinking the Distinction Between Civic and Ethnic Nationalism, in Hanspeter Kriesl, Klaus Armingeon, Hannes Siegrist and Andreas Wimmer (eds.), Nation and National Identity: The European Experience in Perspective 55 (1999). Other analytically penetrating criticisms are developed in Aviel Roshwald, The Endurance of Nationalism: Ancient Roots and Modern Dilemmas 256-58 (2006). See also Dominique Schnapper, The Idea of Nation, 18 Qualitative Sociology 177, 182 (1993)([I]n practice, every national tradition is dual -whether it be intellectual history or historical reality.); Ernest Gellner, Nationalism Reconsidered and E.H. Carr, 18 Rev. Intl Stud. 285, 290-91 (1992) (distinguishing four, not two, types of nationalism). 21 American nationalism has usually presented something of a puzzle to scholars, in part because we are understood to be a civic, not an ethnic, nation. See, e.g., Craig Calhoun, The Class Consciousness of Frequent Travelers: Toward a Critique of Actually Existing Cosmopolitanism, 101 So. Atlantic Q. 869, 878 (2002)([F]or polities not constructed as ethnic nations, what makes membership compelling? This is a question for the European Union, certainly, but also arguably for the United States itself, and for most projects of cosmopolitan citizenship. Democracy requires a sense of mutual commitment among citizens that goes beyond mere legal classification). But see, e.g., Eric Kaufmann, Ethnic or Civic Nation? Theorizing the American Case, -- Canadian Rev. of Stud. on Nationalism (2000) (viewing United States as an ethnic nation, characterized by non-conformist Protestantism and Anglo-Saxon genealogy, for most of its history). 22 The classic example from the home of civic nationalism was the French Republics treatment of the Jews in [its] midst. To the Jew as individual we give everything, to the Jew as Jew nothing, declared Clermont-Tonnerre in the French Assembly in 1790. Civic nationalisms failure to endorse minority group rights may be consonant with liberal individualism and individual human rights, but only by conveniently overlooking the group rights accorded to the majority (host) nation. These rights or duties included the necessity for citizens to learn and conduct affairs in the dominant (French) language, to learn and recite the majority (French) history and literature, to observe French customs, to recognize French political symbols and institutions, and so on. For the Jews, this meant splitting their unitary selfconcept and their ethno-religious community into a religious confession and an ethnic affiliation, stripping them of the latter, and assimilating them into the host nation a procedure applied by liberal civic nationalism to minorities in many national states to this day. Anthony D. Smith, Nationalism: Theory, Ideology, History 44-5 (2d ed. 2010); see also Arthur Hertzberg, The French Enlightenment and the Jews: The Origins of Modern Anti-Semitism (1968).
20

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But that criticism is one-sided and overdone: as the British historian Hugh Seton-Watson rightly said, it is a trap[] for the intellectually unwary . . . to denounce all nationalism as an unmitigated evil. 23 Nationalism can be, and often is, an emancipating and ennobling force as it was in Ukraine, in Poland, in the Baltics, and throughout the former Soviet bloc in the 1980s and 1990s. 24 In liberal circles at the time of the First World War, nationalism was seen as a rational, democratic, and just political aim. The modern principle of nationalism began as part and parcel of the modern ideas of liberty, democracy, and equality between nations as well as between individuals. 25 If German nationalism under Hitler unleashed unprecedented horrors on the planet, 26 the forces of British nationalism mobilized by Winston Churchill, French nationalism rallied by Charles De Gaulle, and Russian nationalism reinvigorated by Josef Stalin, were needed to crush it. Looking forward, Chinese nationalism will likely be an increasingly potent factor in shaping the worlds future though whether by stimulating aggression against Chinas neighbors, 27 or alternatively by nurturing popular protest against economic inequality, corruption, and one-party rule, remains to be seen. 28 If anything, it is the future of institutions like the European Union (EU) designed to stand as bulwarks against nationalism that now seems in question. 29

Hugh Seton-Watson, Nations and States: An Enquiry into the Origins of Nations and the Politics of Nationalism 465-66 (1977). 24 See Calhoun, Cosmopolitanism and nationalism, 14 Nations and Nationalism 427, 440-41 (2008) (pointing out that nationalism has produced some of the greatest works of modernist high culture, furthered democratization, and helped create conditions in which industrial workers secured national institutions that offered them notable protection and support . . . [N]ations are not merely objects of familiarity and affection but achievements of struggle. Far from perfect, they still should not be lightly denigrated, especially not in the name of a new elite-dominated cosmopolitan culture). 25 Hedva Ben Israel, Talmon on nationalism, 34 Hist. Eur. Ideas 189, 196 (2008). 26 Talmon raises the interesting question whether Nazism was truly a nationalist movement, or instead aimed at the creation of an artificially reared international Nordic lite of the racially fittest and purest. Talmon, Unique and Universal, supra, at 63. 27 Should Chinese nationalism take an aggressive turn (as there are signs it may), it would surely trigger counter-nationalism elsewhere, including Japanese, Indian, Russian and perhaps American. 28 See Suisheng Zhao, Nationalisms Double Edge, 29 Woodrow Wilson Q. 76 (2005) (contrasting liberal and state forms of Chinese nationalism, and demonstrating that Chinese government both manipulates and fears popular nationalism). Indeed, nationalism challenges Chinas rulers on two fronts: liberal 6

23

To form a more balanced judgment, we need to scrutinize the prevailing criticisms of nationalism more carefully. To begin with, we may distinguish at least two general kinds of criticism of nationalism. The first we can call statism. This position is fairly common in the minds of political leaders, policymakers, and diplomats. The second we can call cosmopolitanism. This latter view, or family of views, is characteristically associated with philosophers, ethicists, political theorists and legal scholars, although it can of course also be

Chinese nationalism poses a threat to the governments political and economic policies, while the ethnic nationalism of Chinas national minorities in Muslim Xinjiang and in Tibet fuels demands for separatism. See id. at 79. 29 Especially since beginnings of the sovereign debt crisis, the media have been awash with predictions of the EUs demise or radical reconfiguration. For example, the German newspaper Die Welt recently wrote: For years the European idea has been on political and moral overload without regard to peoples yearning for a nation-state. While years ago it was possible to accuse EU critics of being dimwitted, if not right-wing radicals, today this is hardly possible. This isnt just because large majorities of European voters are tired of excessive demands. . . but also because the economic, finance and Schengen crises have destroyed one illusion after another. Simply put, neither open borders nor a common currency have led the countries to grow closer with one another. Its just the opposite. They insist on clinging to their national characteristics. Quoted in Dividing Forces are Mounting in Europe, in Der Spiegel (May 13, 2011) (English ed.), available at http://www.spiegel.de/international/europe/0,1518,druck-762416,00,html . In a similar vein, see, e.g., Stephan Faris, The Future of Europe: A Stronger Union or a Smaller One?, in Time (Aug. 12, 2011), available at http://www.time.com/time/world/article/0,8599,2088111,00.html?artId=2088111?contType=article?chn=wo rld; Walter Russell Mead, Europes Less than Perfect Union (Aug. 10, 2011); Peter Mller, Rudderless EU: Chancellor Merkels Dangerous Lack of Passion For Europe in Der Spiegel On-Line (July 18, 2011), available at http://www.spiegel.de/international/Europe/0,1518,druck-775085,00.html; Frank Furedi, LeadershipStarved EU Heads for Oblivion, in The Australian (July 16, 2011), available at http://www.realclearworld.com/articles/2011/07/16/leadershipstarved_eu_heads_for_oblivion_99593.html;Martin Kettle, Greece, Schengen, NATO? Its time to admit the European dream is over, in The Guardian (June 24, 2011), available at http://www.guardian.co.uk/commentisfree/2011/jun/23/greece-schengen-nato-eu; Ralf Neukirch, Crisis in the EU: Damage Control Isnt Good Enough to Save Europe in Der Spiegel On-Line (May 12, 2011), available at http://www.spiegel.de/international/Europe/0,1518,druck-762179,00.html; Ben Quinn, Can the European Union survive the debt crisis?, in The Christian Science Monitor (May 26, 2010), available at http://www.csmonitor.copm/Business/2010/0526/Can-the-European-Union-survive-the-debt-crisis. Academic writing to similar effect is also beginning to appear. See, e.g., David Marquand, The End of the West: The Once and Future Europe (2011). 7

expressed by political leaders. 30 Let me briefly and summarily review these two main lines of attack on nationalism.

Statism
Statist objections to nationalism inform and pervade policy-making. Essentially, statism views nationalism from a power-political perspective (often, that of a Great Power). Indeed, statism seems to be but a particular application of the familiar theory of realism in international relations. 31 From the statist perspective, nationalism is dangerous because it threatens to upset delicate power balances between states, demand that existing boundaries be redrawn, and set states and populations against each other. Statists may, however, opportunistically favor particular nationalist movements if the activities of those movements would weaken a rival or enemy state. A notorious example of statist thinking is provided by President George H.W. Bushs address to the Supreme Soviet of Ukraine on August 1, 1991 what the columnist William Safire soon famously dubbed the Chicken Kiev speech. Bush used that occasion to lecture the Ukrainians, at the very moment they were poised to overturn decades of Soviet Communism and Russian domination and secure their independence, 32 on the hazards of nationalism: But freedom cannot survive if we let despots flourish or permit seemingly minor restrictions to multiply until they form chains, until they form shackles. Later today, Ill visit the monument at Babi Yar a somber reminder, a solemn reminder, of what happens when people fail to hold back the horrible tide of intolerance and tyranny.

A prominent example of such a political figure was the late Czech President, Vclav Havel. See, e.g., Address by Vclav Havel, President of the Czech Republic, to the Senate and the House of Commons of the Parliament of Canada (April 29, 1999), available at http://vaclavhavel.cz/showtrans.php?cat=projevy&val=105__aj__projevy.html. 31 Realism of course comes in many varieties, see, e.g., Micharl W. Doyle, Ways of War and Peace 41-201 (1997), but here can be understood simply as a claim that states pursue their self-interest (usually defined either as security or power) in the realm of international affairs, without regard to other considerations. 32 Just over three weeks after Bushs speech, on August 24, 1991, the Ukrainian parliament chose national independence by a vote of 346 to one. On December 1, 1991, 90.3% of Ukraines voters in the ensuing referendum confirmed that decision. For an account of the circumstances of Ukraines independence, see Andrew Wilson, The Ukrainians: Unexpected Nation 152-71 (3d ed. 2009). 8

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Yet freedom is not the same as independence. Americans will not support those who seek independence in order to replace a far-off tyranny with a local despotism. They will not aid those who promote a suicidal nationalism based upon ethnic hatred.[ 33] Although Bush later backed off his remarks, 34 they left an indelible impression. In invoking the memory of Babi Yar in order to discourage demands for Ukrainian independence , 35 he clearly implied that Ukraines secession from the collapsing Soviet Union could launch it directly on the course to genocide. He referred to nationalism only when it took a suicidal form that was based upon ethnic hatred. Despite his pointed allusion to Nazi atrocities in which some Ukrainians had collaborated, he signally neglected to mention the genocidal or near-genocidal destruction that Soviet Communism under which the Ukrainians were still living as he spoke had visited on the Ukrainian people. 36 And he failed to acknowledge the many dissidents who had argued that the Ukrainian people were at risk of quieter form of genocide through being assimilated into a state-sponsored Soviet-Russian culture. 37

Chicken Kiev speech, available at http://en.wikisource.org/wiki/Chicken__Kiev__speech. See Bush Sr. clarifies Chicken Kiev speech, in The Washington Times (May 23, 2004), available at http://www.washingtontimes.com/news/2004/may/23/20040523-101623-2724r. 35 In late September 1941, the occupying forces of the Wehrmacht massacred some 33,700 Ukrainian Jews in the Babi Yar ravine outside the city of Kiev. Ukrainian collaborators participated in the massacre. Altogether as many as 1.2 million Jews within the borders of what is now Ukraine perished during the Holocaust. See Wendy Morgan Lower, From Berlin to Babi Yar: The Nazi War Against the Jews, 1941-1944, 9 J. Rel. & Soc. 1 (2007). 36 During the Ukrainian famine of 1932-33, some 5 million people died in Ukraine and the heavily Ukrainian northern Kuban. The Ukrainians refer to this tragedy as the Holodomor, which combines the Ukrainian words for hunger and extermination. The famine resulted from Stalins orders to confiscate the Ukrainian harvest, together with his orders to prevent starving Ukrainians from escaping and the Kremlins refusal to release the states strategic reserves of grain. Although scholars have debated whether the Ukrainian famine can be considered genocide, see, e.g., Mark Mazower, Violence and the State in the Twentieth Century, 107 Am. Hist. Rev. 1158, 1168 (2000), there is substantial evidence that it was so. See Norman M. Naimark, Stalins Genocides 74-79 (2010). Certainly Raphael Lemkin, the inventor of the concept of genocide, considered it to be one. See Raphael Lemkin, Soviet Genocide in Ukraine, 7 J. Int'l Crim. Justice 125, 130 (2009) (text of speech delivered in 1953) (analyzing pattern of Soviet actions in Ukraine up to 1946 as a case of genocide, of destruction, not of individuals only, but of a culture and a nation). 37 Wilson, The Ukrainians, supra, at 152-53. Ukraine had the largest national dissident movement within the Soviet Union and the KGB had accordingly policed the Ukrainians with particular severity. Id. at 153.
34

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Bushs speech both epitomized statist thinking about nationalism and displayed the characteristic flaws in such thinking. In particular, the close link that Bush found between nationalism and ethnic violence is open to question. 38

Cosmopolitanism
Cosmopolitanism is a diffuse, many-sided and sophisticated body of thought, and correspondingly harder to encapsulate than statism. In general, cosmopolitanism can variously designate a style, an outlook, a description of certain global trends, or a normative program. Cosmopolitan thinking emerges from and is entwined with the broad cultural trends we subsume under the heading of post-modernism; with the economic changes we call globalization; and with the political shifts that have occurred since the collapse of bipolarity at the end of the Cold War (and, thereafter, of unipolarity after the Second Gulf War). The powerful influence of cosmopolitanism can be measured by the extent of its hold on contemporary transnational lites. 39

Not surprisingly, scholarly opinions differ. The historian Mark Mazower, e.g., questions whether there is a hard and fast connection between organized violence, the homogenization of populations, and nation or state-building. Mazower, Violence and the State, supra, at 1163. And Hugh Seton-Watson concluded that [i]t is only partly true that nationalism causes wars, or that the sovereign state is an obstacle to peace. The truth is rather that conflicts between national movements and sovereign states are one of the main sources of wars. Seton-Watson, Nations and States, supra, at 469. But see Andreas Wimmer and Brian Min, From empire to nation-state: Explaining wars in the modern world, 1816-2001, 71 Am. Sociological Rev. 867 (2006) (finding, on the basis of quantitative analysis, that spread of nation state is responsible for most modern wars). On civil wars, compare David Laitin, Nations, States and Violence (2007) (finding inter-ethnic violence to be caused, not by ethnic differences per se, but by state failure) with LarsErik Cederman, Andreas Wimmer and Brian Min, Why Do Ethnic Groups Rebel?, 62 World Politics 87, 89-91 (2010) (reviewing literature and criticizing Laitins claims regarding state failure); id. at 114 (Large ethnic groups that are excluded from state power or underrepresented in government are much more likely to challenge the regimes insiders through violent means [and] a loss of power in recent history or previous conflict further increases the likelihood of armed conflict. . . . Roughly half of the conflicts fought since the Second World War can be linked to th[e] dynamic of ethnopolitical struggle for state power.). See generally John C. Yoo, Fixing Failed States, 99 Cal. L. Rev. 95, 133 & n.123 (2011). 39 For an analysis of the causes of cosmopolitanisms prevalence among contemporary transnational lites, see Craig Calhoun, Cosmopolitanism and nationalism, 14 Nations and Nationalism 427 (2008). For earlier debates on cosmopolitanism, see John Pizer, The German Response to Kants Essay on Perpetual Peace: Herder Contra the Romantics, 82 Germanic Review 343 (2007).
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Cosmopolitanism can be said to have both an individualist and an institutionalist aspect. 40 On the first level, cosmopolitanism emphasize the moral priority of our duties to individuals as

such over obligations of any other kinds, including any putative duties we owe to the collectivities
or groups to which we happen to belong. 41 For the cosmopolitan thinker, the ultimate units of concern are human beings, or persons rather than, say, family lines, tribes, ethnic, cultural or religious communities, nations, or states. 42 On the second, institutional level, cosmopolitanism may offer both a diagnosis of what it sees as prevailing global trends and a variety of prescriptions for dealing with those trends. Whether in the form of diagnosis or prescription, cosmopolitan thought is highly unsympathetic to both nationalism and the nation-state. 43 Diagnostically, cosmopolitans discount the staying power of nationalism, minimize its potential as a force for good and (like statists) emphasize the risks that it will lead to violence within and between states. Prescriptively, cosmopolitans recommend a variety of fundamental changes in the current international system, up to and including the disaggregation or even disappearance of national sovereignty, the formation of more robust international organizations and the creation of some form of world citizenship. Although such cosmopolitan programs may allow for the continued existence of nation states (at least in an attenuated form), they characteristically favor a radical diminution of state sovereignty in favor of international or regional organizations, such as the United Nations or
See Jack Goldsmith, Liberal Democracy and Cosmopolitan Duty, 55 Stanford L. Rev. 1667, 1670-73 (2003). As Kwame Anthony Appiah interprets it, cosmopolitanism upholds two ideals universality and diversity. Cosmopolitanism subsumes both a sense of having obligations to others that transcend the ties of kindred, friendship or even national citizenship, and the belief that we can learn from those unlike us and should not expect or demand convergence on a single mode of like. See Kwame Anthony Appiah, Cosmopolitanism: Ethics in a World of Strangers xv (2006); see also Seyla Benhabib, Another Cosmopolitanism (2006). 42 Thomas W. Pogge, Cosmopolitanism and Sovereignty, 103 Ethics 48, 48 (1992). 43 For a review of many of the outstanding issues, see Gillian Brock, Liberal Nationalism versus Cosmopolitanism: Locating the Disputes, 16 Pub. Aff. Q. 307 (2002). See also Richard White, Herder: On the Ethics of Nationalism, 18 Humanitas 166 (2005).
41

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the EU (or improved and more powerful versions of both). 44 At the extreme, they predict and advocate the eventual emergence of a unitary world state. 45 Cosmopolitan hostility towards nationalism and the nation state draws on at least three different kinds of argument. First, it reflects a perspective, characteristic of a transnational lite, that the contemporary, globalizing world affords us the opportunity to assume and combine many different personal identities and to accept many different loyalties; that it is simply too late to assign national identity and loyalty to the nation state the overriding priority that they had once had; and that we should rejoice in and embrace this new freedom. 46 Second, cosmopolitanism may rely on the normative premise that persons have a right to [a global] institutional order under which those significantly and legitimately affected by political decisions have a roughly equal opportunity to influence the making of this decision directly or through elected representatives or delegates. 47 Third, cosmopolitan thinkers may believe that states are no longer competent to solve many of the most pressing collective action problems that the contemporary world faces notably,
See, e.g., Jrgen Habermas, Europe: The Faltering Project 90-94 (Ciaran Cronin trans. 2009); Pogge, Cosmopolitanism, supra. 45 Alexander Wendt, Why a World State is Inevitable, 9 Eur. J. Intl Rel. 491 (2003). A milder (and more plausible) formulation than Wendts is found in Daniel H. Deudney, Bounding Power: Republican Security Theory From the Polis to the Global Village (2007). For an account of earlier cosmopolitan projects envisaging either the deeper integration of nation states into federal structures or even a unitary world state, see Pauline Kleingeld, Six Varieties of Cosmoplitanism in Late Eighteenth-Century Germany, 60 J. Hist. Ideas 505 (1999). Among contemporary cosmopolitan theorists, Pogge, for one, disavows any belief in the desirability or necessity of a world state, urging instead that governmental authority or sovereignty be dispersed in the vertical dimension. . . . Thus, persons should be citizens of, and govern themselves through, a number of political units of various sizes, without any one political unit being dominant and thus occupying the traditional role of state. Pogge, Cosmopolitanism and Sovereignty, supra, at 58. 46 For this perspective, see, e.g., Jeremy Waldron, Minority Cultures and the Cosmopolitan Alternative, 25 U. Mich. J. L. Reform 751 (1991/92). Contrast Calhoun, Critique of Actually Existing Cosmopolitanism, supra, at 874. 47 Pogge, Cosmopolitanism and Sovereignty, supra, at 64; see also David Held, Models of Democracy 338 (2d ed. 1999); Robert E. Goodin, What is So Special about Our Fellow Countrymen?, 98 Ethics 663 (1988); Paul Gomberg, Patriotism is Like Racism, 101 Ethics 144, 148 (1990). Thus, impoverished commodity producers in the global South should, on this approach, have as much say in making the trade decisions of affluent First World states as the citizens of those states themselves, because those decisions have a decisive economic impact on those producers lives. 12
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the ecological crisis, climate change, terrorism, global poverty and the threat of nuclear weapons and accordingly that more powerful transnational institutions are imperative. 48

Some Problems for Cosmopolitanism

On both the diagnostic and the prescriptive level, the arguments for cosmopolitanism are problematic. To begin with, some of the more important factual cosmopolitan claims about the contemporary world are doubtful, for at least three reasons. First, those cosmopolitans whose attitudes to nationalism are uncompromisingly hostile often appear to be unaware how blinkered, parochial and (indeed) uncosmopolitan their own perspective is. The distinguished sociologist Craig Calhoun, though himself a defender of a self-critical form of cosmopolitanism, writes that: Cosmopolitanism . . . reflects an elite perspective on the world. . . . It is a perspective, for example, that makes nationalism appear one-sidedly negative. This is determined first perhaps by the prominence of ethnonationalist violence in recent humanitarian crises, but also by the tensions between states and international NGOs. It is also shaped by specifically European visions and projects of transnationalism. Nationalism looks different from, say, an African vantage point. . . . Looked at from the standpoint of India, say, or Ethiopia, it is not at all clear whether nation belongs on the side of tradition or developing cosmopolitanism. Or is it perhaps distinct from both a novel form of solidarity and a basis for political claims on the state, one that presumes and to some extent demands performance of internal unity and external boundedness?[ 49] Confident cosmopolitans of the present should be chastened by considering how history dealt with the claim of the nineteenth century cosmopolitan Karl Marx that national differences and antagonisms between peoples are vanishing gradually from day to day. 50

See Habermas, Europe, supra at 93; Craig Campbell, The Resurgent Idea of World Government, 22 Ethics & Intl Aff. 133 (2008). 49 Calhoun, Critique of Actually Existing Cosmopolitanism, supra, at 874. 50 Quoted in Ronald Grigor Suny, The Revenge of the Past: Nationalism, Revolution, and the Collapse of the Soviet Union 86 (1993). Indeed, nationalism (or, more precisely, the principle of national self-determination) seemed to many knowledgeable observers to be on the wane in the latter half of the nineteenth century and up to the beginning of the First World War. See Alfred Cobban, The Nation State and National SelfDetermination 46-49 (revd ed. 1969).
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Second, for all the insistence on the nation states disappearance, no other secular political formation certainly not blocs like the EU rivals the nation states authority when it comes to demanding sacrifice from its members. Millions of human beings have given their lives for the sake of the nation state; 51 in all likelihood, millions would still. 52 In a crisis, it remains true today that the secular state does not hesitate to speak of sacrifice, patriotism, nationalism, and homeland in the language of the sacred. The states territory becomes consecrated ground, its history a sacred duty to maintain, its flag something to die for. 53 Third, the cosmopolitan belief that a global order is emerging in which some form of global governance or a unitary world-state supersedes the nation-state is by no means the only plausible projection of existing trends. At least three other scenarios seem possible. One, of course, is that the nation-state survives as the basic unit for ordering world affairs, even if its functions undergo significant alteration and adaptation. International or supranational organizations might assume functions that were better performed at a higher level than that of states, and sub-national units might also absorb functions that had been performed at a national level, but the basic structure of the Westphalian order would remain intact. A second scenario is that supranational regional blocs emerge, perhaps one in Europe, one in East Asia, one in North America, and so on. A third is that of global hegemony or unipolarity, with China, or a revivified United States, in the lead. The cosmopolitan scenario is no more inevitable than any of the other three.

See, e.g., Harry S. Stout, Upon the Altar of the Nation: A Moral History of the Civil War (2007). This observation may be less true of European nation states than of non-European ones in large part because of the continuing memory of the terrifying death tolls in Europe caused by the wars and utopian experiments of the twentieth century. See James J. Sheehan, Where Have All the Soldiers Gone? The Transformation of Modern Europe (2009). 53 Paul W. Kahn, Political Theology: Four Chapters on the Concept of Sovereignty 23 (2011).
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The prescriptive cosmopolitan case is also far from conclusive. Consider briefly the three cosmopolitan arguments to which I alluded above. The first argument that we should welcome the opportunity afforded by globalization to adopt a plurality of identities instead of, or in addition to, a national one has, as we have just seen, more appeal to transnational lites than it seems to have either for their less affluent or educated compatriots or for nationalizing lites outside the Western world. The second argument -- that every inhabitant of the planet has a right to participate in the political decisions that have serious consequences for him or her has to confront and answer objections that supranational institutions and international organizations, to the extent that they exist already, suffer from both democratic deficits and legitimacy deficits. (The EU is often taken as a case in point, 54 but the same can be said for other international or supranational organizations. 55) More generally, cosmopolitan advocates of global governance (or for a unitary world state) need to address and answer the challenge that democracy is a function, in part, of size that the opportunities for (an importance of) citizen participation decrease with the number of citizens. 56 Thus, even assuming, arguendo, that transnational political systems were able to deal more effectively with a range of issues (environmental degradation, nuclear proliferation) than nation-states are, that enhanced capability may come only at an unacceptable cost in the ability of voters to influence public policy choices, and at too great a risk that

See, e.g., Mattias Kumm, Why Europeans Will Not Embrace Constitutional Patriotism, 6 Intl J. Const. L. 11 (2008). In a major 2009 decision, The Lisbon Case, the German Federal Constitutional Court took note of the EUs structural democratic deficit. Bundesverfassungsgericht [BVerfG] (Federal Constitutional Court) Jun. 20, 2009, 2 Entscheidungen des Bundesverfasungsgericht [BVerfGE) 8 264. For a review and analysis of the extensive scholarly literature, see Thomas Jensen, The Democratic Deficit of the European Union, 1 Living Reviews in Democracy (2009). 55 See John O. McGinnis and Ilya Sonim, Democracy and International Human Rights Law, 84 Notre Dame L. Rev. 1759, 1765-78 (2009). 56 Robert A. Dahl, A Democratic Dilemma: System Effectiveness versus Citizen Participation, 109 Poli. Sci. Q. 23, 29 (1994). 15

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transnational governance become the domain of de facto guardianship. 57 The third argument that only some form of global governance can satisfactorily address our most urgent collective action problems is also problematic. Ilya Somin has argued that only a few major states need to agree in order to solve the collective action problem (if it is one) of global warming. Those states have strong incentives to reach such an agreement and little incentive to cheat or defect once an agreement is made, since each of them knows that the problem cannot be solved without its cooperation. 58 Likewise, Todd Sandler has shown that cooperation among a few major states was sufficient to solve problem of ozone layer deterioration. 59 It is far from obvious, then, that the state system must be superseded in favor of global governance if the most pressing global collective action problems are to be solved. Rather than either dying or dangerous force, nationalism, even in the West, may be resilient, vitalizing, and a positive good. And rather than being an outmoded relic of the Industrial Age, the nation-state may prove to be a durable political institution that, even while undergoing significant change, will remain both the basic unit for structuring the global legal order and the primary focus of individual loyalty. Certainly that is how things appear from the perspective of defenders of nationhood and nationalism. So Yael Tamir writes: Nationhood promotes fraternity both among fellow members and across generations. It endows human action with a meaning that endures over time, thus carrying the promise of immortality. These features are desperately needed in an ever-changing, urban, technological age. In this sense, . . . nationalism is not the pathology of the modern age but

Id. at 33. On the conflict between system effectiveness and citizen participation, see generally Robert A. Dahl and Edward Tufte, Size and Democracy (1973). For a recent challenge to Dahls theory, see John Gerring and Domenic Zarecki, Size and Democracy, Revisited, Draft (Apr 19, 2011), available at [cite]. 58 Ilya Sonim, Do We Need Global Governance to Combat Global Warming? (Dec. 21, 2009), available at http://volokh.com/category/collective-action-problems. See also John O. McGinnis and Ilya Sonim, Should International Law Be Part of Our Law?, 59 Stanford L. Rev. 1175, 1241-43 (2007). 59 See Todd Sandler, Global Collective Action 214-20, 224 (2004). Sandler believes, however, that global warming poses a more intractable problem, in part because of the larger number of relevant states involved. 16

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an answer to its malaise to the neurosis, alienation, and meaninglessness characteristic of modern times.[ 60] The subjects of nationalism and the nation state surely merit far closer and more balanced consideration from policymakers and scholars than they are usually given. This essay is an attempt to move the conversation in that direction. In Part I below, I examine the past and continuing importance of nationalism as a force in global history, particularly in relation to its main rivals, liberalism and socialism. In Part II, I address three questions: (1) how does national consciousness emerge; (2) why have nationalist demands for separate statehood so often been successful; and (3) what causes and perhaps justifies -- such demands. Finally, in Part III, I offer reasons to reject, or at least to moderate, both (1) statist and (2) cosmopolitan objections to nationalism. I.

Nationalism, Liberalism and Socialism in the Twentieth Century

Anyone who considers the political history of the twentieth century is compelled to recognize that it was dominated by the contests of three great forces: liberalism, socialism (including communism), and nationalism. Those forces were roughly commensurate in power and attractiveness. 61 Each of them could be said to correspond to an element in the French Revolutionary triad of Liberty; Equality; Fraternity liberalism to liberty; socialism to equality; nationalism to fraternity or solidarity. 62 But unlike liberalism and socialism, nationalism has no

Tamir, Enigma of Nationalism, supra, at 432. Indeed, Talmon affirms that whenever [these forces] are in conflict, it is generally nationalism that has the upper hand. Talmon, Unique and Universal, supra, at 17. 62 Nationalism is built upon the ideal of solidarity, which is supposed to embrace all members of the nation. Solidarity, for example, meant for Jean-Jacques Rousseau, and many of the other eighteenthcentury romantics, a free and democratic community, the direct participation by everyone in their own government. George L. Mosse, Can Nationalism Be Saved? About Zionism, Rightful and Unjust Nationalism, 2 Israel Stud. 156, 159 (1997). As the term fraternity would suggest, however, nationalism was closely connected to masculinity. Id. at 160. To avoid such connotations, it is better to speak of solidarity.
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specific doctrines and (with the arguable exception of the eighteenth century writer J.G. Herder 63) has produced no great thinkers. 64 Indeed, according to some scholars, nationalism hardly counts as a principled way of thinking about things. 65 While liberalism and communism are incompatible with each other, nationalism is compatible with both: thus, nationalism aligned with communism in Vietnam in the 1960s against the United States, and with liberalism (and Catholicism) in Poland in the 1980s against the Soviet Union. (Nationalism, or rather the integral nationalism 66 that took

Herders influence on nationalism is unrivalled. For translations of significant extracts from his work, see F.M. Bernard (ed. and trans.), Herder on Social and Political Culture: A Selection of Texts (1969) and M.N. Forster (ed. and trans.), Herder: Philosophical Writings (2002). A penetrating study of his thought is F.M. Bernard, Herder on Nationality, Humanity and History (2003). A classic earlier account is Isaiah Berlin, Vico and Herder (1976). 64 See Anderson, Imagined Communities, supra, at 5 (discussing the emptiness of nationalism). 65 Robert E. Goodin and Philip Pettit (eds.), Introduction to A Companion to Contemporary Political Philosophy 1, 3 (1993). Other scholars concede that nationalism can be said to have an ideology, or at least to exhibit certain recurring patterns of belief, but contend that its ideology is a thin one. See Michael Freeden, Is Nationalism a Distinct Ideology?, 46 Pol. Stud. 748, 751 (1998) (arguing arguing that nationalism is a thincentred ideology that is best understood as an embellishment and sustainer of a host ideology, but also identifying certain core concepts in nationalism, including the prioritization of a particular group the nation and the assignment of a positive valorization . . . to ones own nation.). Still other analysts offer a definition of nationalism that focuses entirely on a core normative belief. Ernest Gellner takes nationalism to be primarily a principle which holds that the political and national unit should be congruent. Ernest Gellner, Nations and Nationalism 1 (1983). A prominent exception to the general scholarly trend is Anthony Smith, one of the leading students of nationalism. Smith argues for a still more robust conception of the ideology of nationalism. In his view, nationalism typically has five main tenets: 1. 2. 3. 4. 5. The world is divided into nations, each possessing a distinctive character, history, and destiny. Political power resides solely in the nation, and loyalty to the nation overrides all other loyalties. To be free, human beings must identify with a nation. To be authentic, nations must have maximum autonomy. World peace and justice can be built only on a society of autonomous nations.

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Smith, Nation in History, supra, at 72-3. 66 For the distinction between integral and more accommodating forms of nationalism, see, e.g., John Herz, Idealist Internationalism and the Security Dilemma, 2 World Pol. 157, 160-61 (1950). Earlier writers, such as the nineteenth century Jewish Russian historian Simon Dubnow, had posited a similar distinction between defensive or liberating nationalism and aggressive nationalism or national striving for forced assimilation. Simon Dubnow, Nationalism and History: Essays on Old and New Judaism 127 (Koppel S. Pinson 18

hold from the later nineteenth century onwards, also combined with racism; but the connection between nationalism and racism was historical and contingent, not conceptual and necessary. 67 States with liberal ideologies, no less than states with nationalist ones, can racialize their enemies, as the United States did in its war against Japan. 68) Nationalism has often had an uncomfortable relationship with liberalism, 69 as it also does with socialism. Liberalism has in historical practice been linked with imperialism 70 whether in

ed. 1958). See also Mosse, Can Nationalism Be Saved?, supra, at 159 (Nationalism from its beginning contained both the promise of a true community and the seeds of territorial aggrandizement, war, and destruction.); id. at 162 noting the Janus-faced nature of nationalism). 67 See George L. Mosse, Racism and nationalism, 1 Nations and Nationalism 163, 168 (1995) (nationalism has proved itself the most powerful ideology of modern times, and condemning it without distinction, or identifying it automatically with racism, deprives us of any chance to humanize an ideology whose time, far from being over, seems to have arrived once more). See also Anderson, Imagined Communities, supra, at 141-54. 68 See John Dower, War Without Mercy: Race and Power in the Pacific War (1986). 69 Consider, e.g., the characterizations of nationalism that appear in the writings of that influential classical liberal, Ludwig von Mises. First, take von Mises explanation of what liberalism is: The starting point of liberal thought is the recognition of the value and importance of human cooperation, and the whole policy and program of liberalism is designed to serve the purpose of maintaining the existing state of mutual cooperation among the members of the human race and of extending it still further. The ultimate ideal envisioned by liberalism is the perfect cooperation of all mankind, taking place peacefully and without friction. Liberal thinking always has the whole of humanity in view and not just parts. It does not stop at limited groups; it does not end at the border of the village, of the province, of the nation, or of the continent. Its thinking is cosmopolitan and ecumenical: it takes in all men and the whole world. Liberalism is, in this sense, humanism; and the liberal, a citizen of the world, a cosmopolite. Ludwig von Mises, Liberalism: The Classic Tradition xx (Ralph Raico trans., Bettina Bien Greaves ed. 2002 [1965]). From von Mises point of view, nationalism is bound to be violent and exclusionary: Nationalist policies, which always begin by aiming at the ruination of ones neighbor, must, in the final analysis, lead to the ruination of all. In order to overcome such provincialism and to replace it by a policy genuinely cosmopolitan in its orientation, it is first necessary for the nations of the world to realize that their interests do not stand in mutual opposition and that every nation best serves its own cause when it is intent on promoting the development of all nations and scrupulously abstains from every attempt to use violence against other nations or parts of other nations. Id. at xx. Indeed, for von Mises, even the diversity of peoples and languages is regrettable: 19

the form of the vast overseas Western European empires of the nineteenth and twentieth centuries, or in the subtler and more contemporary form of the globalized dominance of Western political, economic and cultural institutions and practices i.e., what its critics call the American Order. 71 Nationalism fueled the drive for decolonization. It proved powerful enough to dislodge the British from India, the French from Algeria, the Dutch from Indonesia. More recently, French nationalism obstructed the United States on its path to war against Iraq in 2003; Donald Rumsfelds appeal to the new Europe over the old Europe sought to trump French nationalism with Polish. 72 Nationalism may all call for decentralization and democratization as well for decolonization. The current struggles within the EU over the terms of relief for sovereign debtors pit, or threaten to pit, Greek nationalism and German. The nationalism of medium- or

From the cosmopolitan standpoint, one must describe the splitting of mankind into different peoples as a circumstance that causes much trouble and costs. Much labor is spent on learning foreign languages and is wasted on translations. All cultural progress would make its way more easily, every contact between peoples would proceed better, if there were only one language. Even one who appreciates the immeasurable cultural value of diversity of material and intellectual arrangements and of the development of particular individual and national characters must admit this and must not deny that the progress of mankind would be made quite extraordinarily more difficult if there did not exist, besides the small nations numbering only a few hundred thousand or a few million souls, larger nations also. Ludwig von Mises, Nation, State, and Economy: Contributions to the Politics and History of Our Time xx (Leland B. Yeager trans., Bettina Bien Greaves ed. (2006 [1919]). 70 For contrasting explanations of this linkage, compare Jennifer Pitts, A Turn to Empire: The Rise of Liberal Imperialism in Britain and France (2006) (imperialism not inherent to liberalism) with Uday Singh Mehta, Liberalism and Empire (1999) (finding imperialism to be in the logic of liberalism). 71 See Emmanuel Todd, After the Empire: The Breakdown of the American Order (2002). 72 At a press conference on January 22, 2003, Rumsfeld said: Now, youre thinking of Europe as Germany and France. I dont. I think thats old Europe. If you look at the entire NATO Europe today, the center of gravity is shifting to the east. And there are a lot of new members. And if you just take the list of all the members of NATO and all of those who have been invited in recently -- what is it? Twenty-six, something like that? youre right. Germany has been a problem, and France has been a problem. Available at http://www.defense.gov/transcripts/transcript.aspx?transcript.id-1330. 20

small-sized nations may be the only force capable of resisting the designs of great (liberal) powers such as the U.S. and Germany for tighter global or regional political and economic integration. 73 Nationalist movements in the twentieth century benefited greatly from the competition between liberalism and communism. This was true in each of the three great waves of nationalism in the twentieth century: that after the First World War; that of decolonization in the post-Second World War period; and that in the aftermath of the collapse of Communism in Europe. During the peace negotiations in December 1917 at Brest-Litovsk between the new, revolutionary Bolshevik government of Russia and the victorious Imperial German and AustroHungarian governments, the Bolshevik delegation submitted a peace proposal that included provision for the full restoration of political independence to the nations that had been deprived of it during the war, and guarantees of referenda for national groups not enjoying independence before the war to decide freely whether to join an existing state or to become an independent state. The Bolsheviks further proposed that in territories inhabited by several nationalities, minority

Jean-Claude Trichet, the President of the European Central Bank and a proponent of a far more integrated EU, has recently argued, in accepting the Charlemagne Prize, that the EUs financial authorities must take a more direct and decisive role in controlling individual member governments economic policies, going well beyond even the reinforced surveillance that is currently being envisaged. See Jean-Claude Trichet, Construire lEurope, btir ses institutions (Intervention de Jean-Claude Trichet, Prsident de la BCE a loccasion de la remise du Prix Charlemagne 2011 a Aix-la-Chapelle le 2 juin 2011), available at http://www.ecb.europa.eu. Some commentators viewed Trichets proposals as a fundamental challenge to democracy in Greece and elsewhere. See Gavin Hewitt, Jean-Claude Trichet outlines his European dream (BBC News: Business, June 3, 2011), available at http://www.bbc.co.uk/news/business-13641063? ; Chris J. Bickerton, To reclaim Europe, first define it, blog post in Le Monde Diplomatique (June 7, 2011) (Trichets proposals would tip the balance between officials and elected representatives in the direction of the former, diminishing the space for political contestation and expanding the remit of national bureaucracies), available at http://mondediplo.com/blogs/to-reclaim-europe-first-define-it. Other supporters of a more integrated, centrally controlled EU are unapologetic about calling for some form of European empire, contending that [a] European Union with serious powers cannot but be imperial and somewhat democratic, and that the alternative is instability and chaos. Jan Zielonka, Europe, back to Empire, blog post in Le Monde Diplomatique (Aug. 23, 2011), available at http://mondediplo.com/blogs/europe-back-to-empire. It is not hard to understand why the nationalism of small nations should emerge in response to these voices. 21

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rights were to be protected by special legal guarantees of cultural and even administrative autonomy. 74 Publication of the Bolshevik proposals caused some dismay in the camp of the Western Allies, who were still engaged in war against the Central Powers, and led the Allies to make self-determination a key element of their own war aims. President Woodrow Wilsons Fourteen Points speech of January 8, 1918 was intended, in part, to match the Bolsheviks support for national independence throughout East-central Europe. Wilson demanded that [t]he peoples of Austria-Hungary . . . should be accorded the freest opportunity to autonomous development and that [a]n independent Polish state should be erected which should include the territories inhabited by indisputably Polish populations. 75 In taking that line, Wilson sought to recapture for the Allies the moral high ground that they feared losing to the Bolsheviks. 76 The ensuing peace settlement under the Treaty of Versailles (1919) resulted in the creation of a host of new or enlarged states in a belt that stretched from Finland to Greece. The second great wave of new states to appear in the twentieth century began to appear soon after the foundation of the United Nations in 1945 by the victorious Western liberal democracies and the Soviet Union. 77 The United States and the Soviet Union agreed to the partition of Palestine and to the admission of the new state of Israel into the General Assembly in 1948. Thereafter the process of decolonization got way in earnest, with strong backing from the

See Arno J. Mayer, Wilson vs. Lenin: Political Origins of the New Diplomacy 1917-1918 at 296-97 (1959). See also Hans Kohn, The United Nations and National Self-Determination, 20 Rev. Pol. 526, 527-28 (1958). 75 See President Woodrow Wilsons Fourteen Points (8 January, 1918), available at http://www.avalon.law.yale.edu/20th__century/wilson14.asp. 76 For an account of the Allies eventual decision to adopt the principle of self-determination, see Alfred Cobban, The Nation State and National Self-Determination 49-56 (revd ed. 1969). 77 Even during the Second World War, the United States and Great Britain had proclaimed, in the Atlantic Charter (1941), that they respect the right of all peoples to choose the form of government under which they will live. Atlantic Charter (Aug. 14, 1941), available at http://www.avalon.law.yale.edu/wwii/atlantic.asp. 22

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United Nations General Assembly. 78 In the first two decades of the United Nations existence, its membership grew from 51 states to 117. Overwhelmingly these new states were formed from former Western colonies or dependencies in the Middle East, South Asia and sub-Saharan Africa. 79 Locked in global competition with the Soviet Union, the United States could (usually) not afford to resist demands for Soviet-backed decolonization (even though that position caused some friction with its British and French allies) and anti-colonial nationalist leaders exploited the superpowers Cold War rivalry to their own ends. 80 The process of United Nations-sponsored decolonization has extended even into the post-Cold War period, as e.g., in the establishment of the independent state of East Timor in 2002. 81 A third wave of new states appeared after the collapse of Communism in 1989 and the disintegration of the Soviet Union in 1991: fifteen new states emerged from the Soviet Unions wreckage. 82 (Not long after, the former Yugoslavia began to disintegrate, creating still more new states.) As we have noted, the United States originally did not warm to these developments: the first Bush Administration apparently preferred to maintain the Cold Wars global duopoly, with a greatly weakened but still unified Soviet Union. Nationalist forces in the former Soviet Union and elsewhere proved too strong, however.

See Thomas D. Musgrave, Self Determination and National Minorities 69-77 (1997). See Mark Mazower, No Enchanted Palace: The End of Empire and the Ideological Origins of the United Nations 145 (2008). 80 See, e.g., Matthew Connelly, Rethinking the Cold War and Decolonization: The Grand Strategy of the Algerian War for Independence, 33 Intl J. Middle East Stud. 221 (2001). 81 See Edward Aspinall and Mark T. Berger, The Break-up of Indonesia? Nationalisms after Decolonisation and the Limits of the Nation-State in Post-Cold War Southeast Asia, 22 Third World Q. 1003, 1010, 1012-13 (2001); Simon Philpott, East Timors Double Life: Smells Like Westphalian Spirit, 27 Third World Q. 135, 143-45 (2006). 82 On the questions that these events posed for international law, see Edwin D. Williamson and John E. Osborn, A U.S. Perspective on Treaty Succession and Related Issues in the Wake of the Breakup of the USSR and Yugoslavia, 33 Va. J. Intl L. 261 (1992/3); Helen Quane, The United Nations and the Evolving Right to SelfDetermination, 47 Intl & Comp. L. Q. 537, 565-68, 569-70 (1998).
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Prediction is always hazardous, but we may soon see a new, if smaller, wave of state formation. 83 If the end of the Cold War saw new states in Central and Eastern Europe emerge from the remains of the Soviet empire, the process of the disintegration of the older Czarist Russian empire may still be unfolding. Russian Prime Minister Vladimir Putin warned very recently that ethnic tensions (fomented largely, in his view, by extreme Russian nationalists) threatened the political unity and territorial integrity of the Russian Federation. Putin stated that [o]ur ethnic and migration problems are directly related to the collapse of the USSR, and beyond that, historically, to the destruction of Greater Russia, which emerged in its original form in the 18th century. . . . The countrys collapse pushed us to the brink and certain regions even to the brink of civil war fueled by ethnic strife. With great effort and major sacrifices these fires were extinguished. But that does not mean, of course, that the problem has been resolved. 84 Yet rather than offering devolution, decentralization, federalism or peaceful secession as cures for Russias ethnic conflicts, Putin insisted on the traditional ethnic Russian dominance of an integral state: The Russian people and Russian culture are the linchpin, is the glue that bonds together this unique civilization. 85

Statistical analysis backs up the assumption made here that the emergence of new nation states comes in waves. See Andreas Wimmer and Yuval Feinstein, The Rise of the Nation-State across the World, 1816 to 2001, 75 Amer. Sociological Rev. 764, 765 (2010) (the global ascent of the nation-state over the past 200 years was a discontinuous process, unfolding in various waves linked to the break-up of large empires). Given that most of the globe is now divided up into nation states, some scholars argue that the emergence of new nation states will be more infrequent and sporadic. See id. at 786 ([W]e do not expect new waves of nation-state creations to sweep over the world. The nationalist dream of organizing the world into a series of states that provide a roof for each culturally defined people . . . has come close to being realized. Nonetheless, new nation states e.g., Kosovo and South Sudan do continue to emerge, and some secessionist movements remain powerful. Furthermore, several of the worlds greatest states, including Russia and China, contain what are or may become restive ethnic minorities. See Zhao, Nation-State by Construction, supra, at 165-208. 84 Vladimir Putin, Russia: The Ethnicity Issue in Nevavismaya Gazeta (Jan. 23, 2012), available in English translation at http://premier.gov.ru/eng/events/news/17831/. 85 Id. 24

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This rapid survey should illustrate the singular power and attractiveness of nationalism during the twentieth century and in the present. Like liberalism, nationalism has proven to be an immensely vigorous and transformative force in world affairs; like liberalism, that force has variously been malevolent or benign. Nationalism seems to be like religion another global force often pronounced dead or dying, yet one that, to the exasperation and bafflement of the secular minded, refuses to go away and indeed exercises a growing influence. 86 If only to understand the world in which we (still) live, it is essential to study contemporary nationalism carefully. II.

Nationalism and the Demand for Separate Statehood

Despite claims that the nation-state is in decline, the number of nation-states continues to grow. Currently, the U.S. State Department recognizes 195 independent states a figure that includes Kosovo but not Taiwan. 87 United Nations membership has grown from 51 in 1945 to 193 in 2011 including the newest independent state, South Sudan, but not including Kosovo or Taiwan. 88 Still more new states may emerge: in September 2011, Palestinian officials requested

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Talmon argues that [m]odern nationalism seeks to be a substitute for religion. He deepens that insight by developing the similarities: It is, as well as other things, a form of striving for spiritual redemption, a straining for a solution of the contradiction between the urge to break away, and the need to belong; between the desire for self-expression, and the yearning for self-surrender; between the quest for freedom, and the longing for redemption; between the instinct of adventure, and the hope for tranquillity and security; between the impulse to display power and vitality, and the love of justice and the wish for certainty; between hubris, and the sense of sin.

Talmon, Unique and Universal, supra, at 19. It is too strong to claim, however, that nationalism substitutes for religion. It is more accurate to say that nationalism coexists with religion, often overlaps extensively with it, and is almost always colored by the legacy and/or persistent influence of religious sensibilities and worldviews. See Roshwald, Endurance of Nationalism, supra, at 51. 87 See U.S. Department of State, Independent States in the World (July 15, 2011), available at http://www.state/gov/s/inr/rls/4250.htm. 88 See United Nations, United Nations Member States: Growth in United Nations membership, 1945-present, available at http://www.un.org/en/members/growth.shtml. 25

admission into the United Nations General Assembly. 89 Furthermore, secessionist movements aiming at eventual statehood are found across the globe, including a Chechen movement in Russia; a Basque movement in Spain and France; a Kurdish movement in Turkey, Iran and Iraq; and an Islamic movement in the Philippines. Even the centuries-old union of England and Scotland is threatened by a referendum on Scottish independence scheduled to be held in 2014. 90 To be sure, the nation-state as a political institution, at least in parts of the developed world, may still seem threatened both from above by supra-national forms of government like the EU and from below through regional movements, identity politics, and other movements. 91 But the drive towards more encompassing transnational political formations has encountered unforeseen obstacles and may have stalled: the EU in its present form may eventually prove to be no more significant a factor in global affairs than such earlier supra-national structures as the AustroHungarian Empire, 92 the British Commonwealth or the Soviet Union. These facts suggest that the demand for statehood remains extremely powerful. It is therefore worth considering three questions in Part III below. (1) How does national consciousness come to emerge? (2) Why have nationalist demands for independent statehood generally been so successful? (3) What causes nationalist demands for independent statehood?

See Application of Palestine for admission to membership in the United Nations: Note to the Secretary General, A/66/371-S/2011/592 (Sept. 23, 2011). Admission into the United Nations is open to States under Art. 4(1) of the United Nations Charter, although there has been at least one non-state member (India before independence). See John Cerone, ASIL Insights: The UN and the Status of Palestine Disentangling the Legal Issues (Sept. 13, 2011), available at http://www.asil.org/insights110913.cfm. 90 See Brian Groom, Untied Kingdom, in The Financial Times at 5 (Jan. 28/29, 2012). 91 See, e,g., Uri Ram, Postnationalist Pasts: The Case of Israel, 22 Soc. Sci. Hist. 513, 533 (1998). Ram argues that what has happened to the nation-state can be analogized to the fate of the neighborhood grocery store, which was first supplanted by the large supermarket chain and then later by the boutique retailer of gourmet specialties. See id. at 533-34. 92 The Habsburg monarchy, a depositary of the old imperial dream, was supranational in its very principle. Schnapper, The Idea of Nation, supra, at 179. 26

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After addressing these questions, I will turn in Part IV to considering how these demands are to be evaluated on a policy, and then a normative, level. A. What causes national consciousness to arise? To understand nationalism fully, we need to understand how it originates. How does an ethnic or national group come to be formed and, once formed, how does it acquire a national consciousness? Obviously, the answers to these questions are complicated and contentious; nor are they within the competence the normal legal scholar. Furthermore, there has long been, and still is, a fundamental but unresolved division of opinion within the ranks of students of nationalism between those who favor primordialism and those who favor instrumentalism. 93 Nonetheless, a few words on the topic of the origins of national consciousness are necessary. Some leading students of nationalism distinguish ethnicity from nationality the latter being taken as a modern, secular form of ethnicity. 94 But modern nationalities may be taken to be rooted in earlier ethno-linguistic or ethno-religious milieux (to which Anthony Smith gives the name ethnie 95). Such earlier groups can be distinguished by the names which they give to themselves or by which they are known to others, by myths of a common descent, by a sense of a common past, by language, religion or law, by feelings of solidarity or kinship, and/or by links to a particular territory. Such ancient peoples as the Jews, the Armenians, and the Greeks may serve as examples. Although many ethnie have disappeared, others have (arguably) survived, even for millennia, aided perhaps by a powerful sense of a unique religious identity or mission.

For a helpful discussion of the controversy, see Zhao, Nation-State by Construction, supra, at 4-7. See Suny, Revenge of the Past, supra, at 12. 95 See Smith, Nation in History, supra, at 71-72. Smith in fact distinguishes among three kinds of ethnie: Immigrant, aristocratic, and demotic. He argues that the path to national self-consciousness is different in each case. A concise summary of Smiths ideas on ethnie may be found in Calhoun, Nationalism and Ethnicity, supra, at 227-29.
94

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Most ethnie cannot be traced back to antiquity. Nor do members of a given ethnie always identify themselves as belonging to such a group. But historians detect the beginnings of such selfconsciousness in some (European) ethnie in the late middle ages or early modern period. The sense of being English,e.g., seems to have developed fairly early, perhaps by 1520. 96 The advent of modernity seems to have stimulated the growth of such awareness in other groups and, more particularly, it seems to have caused the emergence of nationality out of ethnicity. Nationalities can be distinguished from ethnies in a variety of ways, including a more secularized identification, a larger size for the group, a degree of deterritorialization, and softer rather than harder boundaries. 97 The processes of transforming an (often unself-conscious) ethnie into a (more self-aware) nationality, and thereafter of mobilizing a nationality so that it makes demands for statehood, are complicated and disputable. The Czech historian Miroslav Hroch proposed a three-stage evolution, based on his study of nationalist movements in East-central Europe. 98 To simplify: in the first stage, a handful of pioneering scholars (often historians and philologists) develop a passionate interest in an ethnies language, customs and history. The second stage is the fermentation of national consciousness, in which patriotic agitators and political leaders diffuse and popularize the scholarly ideas. The third stage is that of full national revival, in which the broad masses are caught up in a nationalist movement. The characteristic goals of national movements are formulated in the second phase or early in the third, and usually call for (1) the development or improvement of a national culture based on the local language; (2) the formation

See Smith, Nation in History, supra, at 36-38. Seton-Watson dates the emergence of English nationhood even earlier, to the fourteenth century. See Seton-Watson, Nations and States, supra, at 30. 97 Suny, Revenge of the Past, supra, at 13. 98 A compendious statement of Hrochs views can be found in Miroslav Hroch, National Self-Determination from a Historical Perspective, 37 Canadian Slavonic Papers 283, 284-85 (1995). A more extended study is Miroslav Hroch, Social Preconditions of National Revival in Europe (Ben Fowkes trans. 1985). 28

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of a national lite, the abolition of social privileges, and the just division of goods between different nationalities; and (3) political reforms, including some form of self-determination. 99 Hrochs account obviously assigns a crucial role to political and intellectual lites in the formation of national consciousness. Assuming the truth of that analysis, it does not follow (as some might infer) that particular nationalisms are somehow unreal, and therefore valueless or illegitimate. As Ronald Suny correctly points out, an imagined community . . . is not an imaginary community. 100 Or, as Yael Tamir remarks, [i]f real is taken to mean existing as a fact, then, as every realist in international relations will attest, the existence of imagined communities is a social fact. 101 Moreover, it seems unlikely that nationality could be purely the invention of manipulative, power-seeking lites. As Anthony Smith has argued, [c]onstructing the nation away misses the central point about historical nations: their powerfully felt and willed presence, the feeling shared among so many people of belonging to a transgenerational community of history and destiny. We do not have to reify the nation by conceding the vivid tangibility and felt power of its presence, irrespective of the way in which the nation or any particular nations emerged. 102 Cosmopolitans should themselves recognize the limitations on the power of lites to invent nations out of whole cloth: if lites could shape mass consciousness so effectively, then why has it proven so difficult to construct a distinctively European identity (as distinct from a national German or Greek one)? 103 And why were lites in the Soviet Union and the Ottoman Empire unable, despite efforts that extended over several decades, to construct Soviet or

Hroch, National Self-Determination, supra, at 286. Suny, Revenge of the Past, supra, at 12-13. 101 Tamir, Enigma of Nationalism, supra, at 423. 102 Smith, Nation in History, supra, at 57. 103 See Lars-Erik Cederman, Nationalism and Bounded Integration: What It Would Take to Construct a European Demos, European University Institute Working Papers 15-16 (2000), available at [cite]; Noel Coughlan, A Democratic Deficit in Europe?, 94 Irish Q. Rev. 293, 296-97 (2004).
100

99

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Ottomanist identities that subsumed particular national ones? 104 Furthermore, cosmopolitans should not try to delegitimize national identities on the grounds that it is a (mere) invention: what identity is more transparently an invention than that of being a citizen of the world? 105 B. Why have nationalist demands so often been successful? Demands for separate statehood by national groups have often, though not invariably, been successful. 106 Why should that be? To begin with, the international environment since 1945 has created conditions that have been generally favorable to the emergence of new (small) states. Several salient features of that environment deserve particular mention. 107 The underlying element in them all is that they tend to promote international security, and security in turn makes the survival of small states more feasible. First, the decrease in the likelihood of war between states has been very favorable to the rise in the number of small states. 108 In a world in which small states are exposed to the risk of invasion and conquest by larger and more populous neighbors, small states will tend to disappear. 109 The history of Central Europe between (say) 1919 (when new, small states like

On the failure of the efforts by the Tanzimat reformers of the late Ottoman Empire to construct an Ottomanist identity, see M. Skr Hanioglu, Atatrk: An Intellectual Biography 26-7 (2011). 105 Likewise Marxists, who traditionally insisted that nationalism was a form of false consciousness, routinely failed to see that class was at least as much a construct as nation if not more so. The English historian Edward P. Thompson was a notable exception to this rule. See his Making of the English Working Class (1963). 106 To be sure, they have not invariably been successful. Failed attempts at independence include the Republic of Katanga (1960-1963); the Republic of Biafra (1967-1970); and Rhodesia (1965-1980). 107 See generally Yoo, Fixing Failed States, supra, at 132-36. 108 Some scholars have argued that the decline in major wars during the long peace that followed the Second World War is an aspect of a long-term secular trend towards the disappearance of war. See John Mueller, Retreat from Doomsday: The Obsolescence of Major War (1989); but see Carl Kaysen, Is War Obsolete? A Review Essay, 14 Intl Sec. 42 (1990). 109 Territorial size and population are rough proxies for wealth, which in turn translates readily into military power. Further, because of economies associated with scale, larger and more populous states will be more likely to be able to acquire military forces at a lower per unit cost than smaller states. As the 30

104

Czechoslovakia began to appear) and 1948 (when the Communist takeover of Czechoslovakia occurred) illustrates the point. Caught between two powerful and aggressive neighbors (Germany and Russia), the small states of Central Europe (including, at different times, Austria, Hungary, Czechoslovakia, and Poland) were soon absorbed into or overrun by the greater powers near their borders. But beginning with the creation of NATO in 1949, the West came to form what has been called a security community. 110 Within the Atlantic world roughly, the geopolitical space that encompasses North America and Western Europe there has been, for decades, virtually no threat that one state will attack another. The collapse of Communism and the ensuing weakness of Russia made it possible to extend the Atlantic worlds security community far eastwards, to include the Baltics, Central Europe, and even Ukraine. (Whether Russias invasion of Georgia in 2008 signaled the limits to this expansion is an open question.) Czechoslovakias geographical position enabled it to join this security community. Ironically, the possibility of joining the Western security community also made Slovakias secession from Czechoslovakia far more feasible. A second circumstance favorable to the emergence of new states has been the spread of international trading patterns brought about globally by the GATT and the WTO and regionally

cost of defense rises for small states, they are more likely either to be outclassed militarily or to yield to the demands of larger states. 110 The concept of a security community was developed by the political scientist Karl W. Deutsch. See, e.g., Karl W. Deutsch et al., Political community and the North Atlantic area: International organization in the light of historical experience (1957); see also Robert Jervis, Theories of War in an Era of Leading-Power Peace, 96 Am. Pol. Sci. Rev. 1 (2002). According to Deutsch, [a] security community is a group of people which has become integrated. Integration is defined as the attainment of a sense of community and of institutions and practices strong enough and widespread enough to ensure for a long time, dependable expectations of peaceful change among its population. Id. at 5. Security communities include a variety of types. In the international area, security communities in which member states retain their sovereignty include such zones of peace as the European Union or the U.S.-Canada dyad. For a review of Deutschs (and later) work on the topic, see Wolf-Dieter Eberwein, The Future of International Warfare: Toward a Global Security Community?, 16 Intl Poli. Sci. Rev. 341, 346-48 (1995). 31

by institutions like the EU. 111 Because of liberalized trading rules, great states do not need to subjugate and annex smaller ones in order to ensure themselves of export markets or access to natural resources. Likewise, small states cannot be coerced by threats from their larger neighbors that their markets will be closed to them unless they accept unfavorable terms of trade or agree to political dependency (practices that some analysts take to have been part of Nazi Germanys strategy towards Central Europe in the 1930s 112). Small states can also exploit whatever comparative advantages they have in international trade by specializing in certain products or services, rather than investing resources in the attempt to improve their security by achieving a greater degree of self-sufficiency. Changing global economic and financial patterns, including (but not limited to) the removal of barriers to international trade, have also reinforced security and so are propitious for small states -- by eliminating likely causes of war. 113 Some liberal peace theorists argue that the spread of capitalism helps to resolve anxieties over security by creating powerful pacifists, [i.e.,] countries possessing military strength ensuring that they are largely free from foreign influence or domination, but equally that they lack incentives to act aggressively abroad, at least under certain circumstances. 114 Further, the argument maintains that capitalism has weakened traditional incentives to engage in wars of conquest because the relative value of assets such as land, minerals and rooted labor has declined. 115 At the same time that the rewards of aggressive war have

See Alberto Alesina and Enrico Spolaore, The Size of Nations 81-85 (2003). The classic study is Albert O. Hirschmann, National Power and the Structure of Free Trade 76 (1945). 113 A pre-War study is F. Cyril James, Economic Nationalism and War, 175 Annals Amer. Acad. Pol. & Soc. Sci. 65 (1934). 114 Erik Gartzke, The Capitalist Peace, 51 Am. J. Pol. Sci. 166, 171 (2007). The description obviously fitted the United States as a global hegemon. 115 For criticism of the claim that conquest (never) pays in contemporary conditions, see Peter Liberman, Does Conquest Pay? The Exploitation of Occupied Industrial Societies (1996). Liberman finds that conquest will still pay if the conqueror is ruthless enough. For an evaluation of the competing claims, see Robert Jervis, Theories of War in an Era of Leading-Power Peace, 96 Am. Pol. Sci. Rev. 1, 6 (2002).
112

111

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diminished, the costs of war and especially of occupation have risen for more powerful states (in part because of the ready availability of inexpensive weapons of the weak like the AK-47 or improvised explosive devices (IEDs)). Development thus leads states to prefer trade to theft. Additionally, deepening economic integration across international borders can impose heavy market sanctions on states that threaten war against other states instead of seeking diplomatic resolution of their differences. States with economies integrated into global markets face autonomous investors with incentives to reallocate capital away from risk. A leaders threats against another state become costly when threats spark market repercussions. . . . Two economically integrated states can more often avoid military violence, since market integration combines mechanisms for revelation and coercion. An economically integrated target can be coerced by the threat of losing valuable exchange, but a nonintegrated initiator cannot make its threats credible or informative. Conversely, a global initiator can signal but has little incentive to hamper its own markets when a nonintegrated target does not suffer. 116 C. Why are there demands for independent statehood? Even if international conditions favorable to the emergence of small states have arisen, however, it would not follow that peoples would take advantage of them, unless they had good reason to do so. (The fact that Slovakia could secede from Czechoslovakia does not explain why it

did so.) Why then do peoples seek independent statehood? At this point, national consciousness
must re-enter the discussion. A minority ethnic group with a multi-ethnic state, if dissatisfied with its condition and in a position to change it, may face the choice between two alternatives: some form of autonomy or

116

Gartzke, Capitalist Peace, supra, at 173. 33

self-determination within the existing state structure; or independent statehood of its own. 117 Autonomy can promise a remedy for many of the groups grievances, usually without the risk of violence that demands for partition and secession entail. 118 Ethnic minorities living in mature, affluent democracies such as Canada, the United Kingdom, or Spain have nearly always been willing to accept autonomy as an alternative to separate statehood. 119 It is doubtful, however, whether the promise of cultural autonomy, or even of a measure of political autonomy within a larger union, would generally satisfy dissident nationalities in other situations (immature
In its Declaration on Principles of International Law concerning Friendly Relations, U.N. G.A. Res. 2625 (Oct. 24, 1970), the U.N. General Assembly laid down the principle that [t]he establishment of a sovereign and independent State, the free association or integration with an independent State or the emergence into any other political status freely determined by a people constitute modes of implementing the right of self-determination by a people. Consequently, the claim to self-determination need not result in the creation of separate statehood; it may be satisfied by other forms of political status within a state. Elaborating on this, the Supreme Court of Canada said in a leading case: The recognized sources of international law establish that the right to self-determination of a people is normally fulfilled through internal self-determination -- a peoples pursuit of its political, economic, social and cultural development within the framework of an existing state. A right to external self-determination (which in this case potentially takes the form of the assertion of a right to unilateral secession) arises in only the most extreme of cases and, even then, under carefully defined circumstances. External self-determination can be defined as in the . . . Declaration on Friendly Relations. Reference re: Secession of Quebec, [1998] 2 S.C.R. 217 at 126. 118 See Cass R. Sunstein, Constitutionalism and Secession, 58 U. Chi. L. Rev. 633, 635 (1991) (although the principal argument for recognition of a right to secede is that it would operate as a powerful deterrent to oppressive and discriminatory practices, and also serve as an effective remedy for [them], [u]sually these goals can be promoted through other, more direct means.). 119 Although at one time it appeared to face a serious threat of secession, Canada has maintained its (highly decentralized) federal union. See James J. Summers, The Right of Self-Determination and Nationalism in International Law, 12 Intl J. on Minority and Hum. Rts. 325 (2005) (reviewing international law issues). Possible explanations for the Canadian case are that the Province of Qubec enjoys substantial political and administrative autonomy; that the linguistic rights of Francophones in Canada are extensive; that French Qubecois perceive economic benefits to remaining part of the Canadian federation, and likely downside in seceding from it; that the relative difference in living standards between Anglophones and Francophones has diminished; that Anglophone Canadian lites have been willing to accept powersharing arrangements; and perhaps also that side-payments from the federal union to Qubec discourage secessionism. See Stephane Dion, Why is Secession Difficult in Well-Established Democracies? Lessons from Quebec, 26 Brit. J. Pol. Sci. 269, 278-81 (1996); see also Andreas Wimmer, Institutions or Power Sharing: Making Sense of Canadian Peace, 22 Sociological Forum 588 (2007); Raymond Breton, From ethnic to civic nationalism: English Canada and Quebec, 11 Ethnic and Racial Stud. 85 (1988). 34
117

democracies; dictatorships; colonies; conditions of economic backwardness). The worlds newest state the very underdeveloped South Sudan is a case in point: although the government of Sudan recognized the southern Sudanese populations right to self-determination in 2002 and promised the region extensive autonomy pending a referendum on independence, 98% of the southern Sudanese voted for independence from the North when that referendum was held on January 2011. 120 Indeed, many scholars of nationalism have contended that it is normal for a nation to seek independent statehood. Thus, e.g., Max Weber wrote that [a] nation is a community of sentiment that would adequately manifest itself is a state of its own; hence, a nation is a community which normally tends to produce a state of its own. 121 At least general three reasons might be offered to explain the demand for statehood. 122 Roughly, the first concerns a groups need for security and self-preservation; the second, its desire to acquire economic benefits or avoid economic exploitation; the third, its desire for cultural self-expression and self-development.

i. Security
First of all, as the political scientist John Mearsheimer has recently emphasized, [n]ations want their own states because it is the best way to maximize their prospects for survival in a world

See Khalid Mustafa Medani, Strife and Secession in Sudan, 22 J. Democracy 135, 135-36 (2011). Quoted in Smith, Nationalism, supra, at 28; see also Gellner, Nations and Nationalism, supra, at 1 (explaining nationalism as a theory of political legitimacy, which requires that ethnic boundaries should not cut across political ones, and, in particular, that ethnic boundaries within a given state . . . should not separate the power-holders from the rest). 122 The literature on the causes of nationalist demands for statehood is enormous. What I can only offer three representative approaches; by no means is this survey intended to be comprehensive. Further, the three explanations undoubtedly overlap in some cases: thus, a national minority may be seeking statehood because it resents imperial oppression, wants to avoid economic exploitation or capture economic advantages, and desires to express and promote its ethnic distinctiveness. On the other hand, the explanations may also to some extent be incompatible, in that the first may presuppose a hard (or primordial) notion of ethnicity, the second a soft (or instrumentalist) one, and the third something in-between.
121

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of competing nations. 123 Whatever the explanation may be, 124 different ethnic groups living within the boundaries of the same state are frequently in conflict even deadly conflict. In extreme cases, one ethnic group may face the threat of physical extinction at the hands of another as, e.g., Ruandas Tutsi did at the hands of that country Hutu in 1994. But even where the threat of physical extermination is non-existent, an ethnic group may feel pressured by a more powerful group within the same country to assimilate to the latter in certain ways linguistically, religiously or culturally. Of course the pressure to assimilate may be well-intentioned; it may occur without any overt governmental support or sponsorship; it may be the product of market forces or of the attractiveness of the dominant groups culture. Nonetheless, the pressures can pose a threat to the groups survival, and so be resented and resisted. Thus, ethnic Czechs in the Austro-Hungarian Empire in the nineteenth and early twentieth century felt threatened by the pressure to assimilate
John J. Mearsheimer, Kissing Cousins: Nationalism and Realism at 20 (May 5, 2001), available at [website]. Explanations of ethnic conflict tend to fall between two extremes, one of which posits the hard view that ethnic groups are based (to put it simply) on passion, and the other of which posits that they are based on interest. (Alternatively: the hard view understands ethnic groups to be in some substantive sense real or made of stone; the soft view takes them to be imagined or made of putty). See Donald L. Horowitz, Structure and Strategy in Ethnic Conflict (Paper prepared for the Annual World Bank Conference on Development Economics, Washington, D.C., April 20-21, 1998). Mearsheimers explanation of ethnic conflict, see text supra, appears to assume a hard view; the explanation proffered by Paul Collier and Anke Hoeffler, infra, text at nn.--, reflects a soft view.
124 123

More precisely, the hard view (in its pure form) takes ethnic groups to be ascriptive, firmly bounded entities that are based on a strong sense of commonality, engender considerable loyalty, persist over time, provide large affective rewards to group members, incline toward ethnocentrism, are hostile to and desire to dominate outsiders, are liable to pursue conflict behavior based on passion (even to the exclusion of calculation), and engender a great willingness on the part of group members to sacrifice for collective welfare. Id. at 2. The soft view (in its pure form) believes ethnic groups to be entities whose boundaries are problematic and malleable whose solidarity is based on the material rewards they provide their members rather than on diffuse affection; whose behavior, based on the interests of their members, is vulnerable to strategic manipulation; whose apparent affect can often be reduced to calculation; and whose severe conflicts with others often result less from irreconcilable objectives than from strategic dilemmas. Id. Horowitz analyzes ten different and incompatible explanations of ethnic conflict in terms of this framework. See id. at 5-13. Consistent with his review, scholars have differed over, e.g., the ethnic origins of the wars in the former Yugoslavia. Compare Barry Posen, Nationalism, the Mass Army, and Military Power, 18 Intl Sec. 80, 85 (1993), with V.P. Gagnon, Jr., Ethnic Nationalism and International Conflict: The Case of Serbia, 19 Intl Sec. 130 (1994), and with Steven Majstorovic, Ancient Hatreds or Elite Manipulation? Memory and Politics in the Former Yugoslavia, 159 World Aff. 170, 171 (1997). 36

both linguistically and culturally into the dominant German population. This was in large part because German was much more widely used in commerce, scholarship, science and travel than Czech, because German high culture held a powerful attraction for the Czech bourgeoisie, because Czechs frequently knew and used the German language in any case (e.g., through intermarriage with Germans or residence in Vienna), and because the Czechs saw themselves as an isolated Slav island surrounded by an ethnically German sea. The reproduction of Czech culture and language was thus felt to be a life-or-death issue for the Czech nationalists before the First World War, despite the absence of any threat to their physical lives, safety or security. 125 Confronted with such threats to their survival whether of extermination, of discrimination and second-class (or no) citizenship, or even of gradual and peaceful assimilation ethnic groups have sought to shelter within states in which they are dominant. 126 Such demands may become particularly insistent when there has been a history of ethnic conflict, violence and persecution. South Sudan is, again, a case in point. Northern and southern Sudan had been at war almost continuously since 1955. The conflict pitted the predominantly Moslem and Arab north against a largely African and Christian or animist south. Altogether some two million south Sudanese, most of them civilians, were killed by north Sudanese forces. Much of the killing occurred between (then) Brigadier General Omar Hassan al-Bashirs coup dtat in June, 1989 and the internationally-brokered Machakos Protocol in 2002. Khartoums air force bombed southern
Pre-War Czech nationalists demanded that parents enroll their children in Czech schools, saying: Remember that your children are not only your own property, but the property of the nation. In Bohemia, a parents choice of a German or Czech school had become a matter of unprecedented personal, political, moral, and national significance. Tara Zahra, Reclaiming Children for the Nation: Germanization, National Ascription, and Democracy in the Bohemian Lands, 1900-1945, 37 Cent. Eur. Hist. 501, 502 (2004). 126 Virtually no states if any are inhabited solely by a single ethnic group. Save perhaps for Iceland, which seems to have kept its gene pool fairly well intact, all the countries of the world and all the states that are, well or badly, designed to govern them and to give them a collective presence in the world are as intricate as German verbs, as irregular as Arabic plurals, and as various as American idioms. Clifford Geertz, What Is a State If It Is Not a Sovereign?, 45 Current Anthropology 577, 584 (2004). 37
125

refugee camps, and government-aligned militias expelled southerners from displaced-persons camps around the capital. In the mid-1990s, the Bashir regime called for jihad and used proxy militias employing scorched-earth tactics in the Nuba Mountains and South Kordofan to carry it out. 127 Offered the opportunity to vote for independence, the South Sudanese gladly chose to have a separate state of their own. 128 Although the prospects of a peaceful divorce seem slender to some analysts, oil-rich South Sudan may be capable of financing its own defense. Yet another recent case in which a national minority has sought to protect its existence and security by founding its own state is that of Kosovo, which declared its independence from Serbia on February 17, 2008. 129 Even before the NATO intervention in 1999, Serbia had had a record of murderous violence against the Albanian Kosovars: as one Albanian Kosovar historian put it, a river of blood had coursed between the history of the two peoples. 130 In 1999, before NATOs victory, Serbian ethnic cleansing drove nearly one million Kosovar Albanians out of their homes i.e., almost 75% of Kosovos total Albanian population of 1.8 million. Of that one million, about 800,000 were forced flee outside the country to Albania, Macedonia or elsewhere. Another 500,000 ethnic Albanians may have been displaced internally, often being forced to live outdoors. Estimates vary, but a death toll of 5,000 to 10,000 ethnic Albanians seems plausible. 131

Medani, Strife and Secession in Sudan, supra, at 140. Although large numbers southern Sudanese moved to the north during the conflicts, many returned to vote in last Januarys referendum. The returnees told one columnist of horrendous racism [in the north] and were adamant that secession by the underdeveloped south was inevitable because freedom in poverty was preferable to development in bondage. Farai Sevenzo, South Sudan: Mother Africas latest child (July 5, 2011), available at http://www.bbc.co.uk/news/world-africa-14014759. 129 See Accordance with International Law of the Unilateral Declaration of Independence in Respect of Kosovo, International Court of Justice Advisory Op. No. 141 (July 22, 2010). 130 Hajredin Kui, The Legal and Political Grounds for, and the Influence of the Actual Situation on, the Demand of the Albanians of Kosovo for Independence, 80 Chi.-Kent L. Rev. 331, 344 (2005). 131 See Robert J. Delahunty and Antonio F. Perez, The Kosovo Crisis: A Dostoievskian Dialogue on International Law, Statecraft, and Soulcraft, 42 Vanderbilt J. Transnatl L. 15, 95 (2009).
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Against that background, it is hardly remarkable that the Kosovar Albanians should have demanded to secede from Serbia. Given the powerful backing that the new state of Kosovo enjoys from the United States, the EU and NATO, its independence seems sustainable (at least for the foreseeable future). Certainly, the Obama Administration holds this view: in its July 2009 submission to the International Court of Justice in support of the legality of Kosovos unilateral declaration of independence, it argued that the declaration brought new stability to a troubled region. The Declaration freed not just Kosovo but also Serbia, which is liberated from an illusory effort to retain control over Kosovo. . . . Both Kosovo and Serbia are now free to pursue [a] European future. 132 An older example is the State of Israel. Although stateless and deterritorialized for almost two millennia, the Jewish people preserved its identity, despite encountering extremes of oppression and persecution that reached a horrifying climax in the Holocaust. 133 Theodore Herzl, the founder of political Zionism, envisaged Israel as a safe haven for the Jewish populations most gravely at risk in nineteenth century Europe. 134 Israel has continued to serve that purpose, receiving Jews not only from Europe but from other parts of the Jewish diaspora. As a result of the Arab-Israeli conflict, some 850,000 Jews from Arab lands have been forced to leave their homes.

Written Comments of the United States of America (July 2009) at 3, International Court of Justice, Accordance with International Law of the Unilateral Declaration of Independence in Respect of Kosovo (Request for an Advisory Opinion). 133 I am assuming here what remains the standard historiography of the Jewish people, as reflected in, e.g., Simon Markovich Dubnow, Jewish History: An Essay in the Philosophy of History (2008). That standard view has recently been subjected to a post-modernist critique. See Shlomo Sand, The Invention of the Jewish People (2010); Uri Ram, Zionist Historiography and the Invention of Modern Jewish Nationhood: The Case of Ben Zion Dinur, 7 Hist. & Memory 91, 114-17 (1995). 134 See, e.g., Isaiah Friedman, Theodor Herzl: Political Activity and Achievements, 9 Israel Stud. 46 (2004). 39

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Many made their way to Israel: as of 2002, about half of Israels population consisted of Jews from the Arab world or their descendants. 135 Finally, Pakistan is another case in which a minority (here, a religious one) sought safety by founding a state in which it would be dominant (both demographically and ideologically). Throughout the history of their struggle for independence, Indian Muslims emphasized that they were a group distinct from Hindus. The unity of the Muslim nation was largely based on fear of a Hindu majority. 136 Another analyst argues that the demands for partition and a separate state for Indias Muslims were the desperate reactions of the Muslim elites to what they came to consider the Hindu design to reduce Muslims to a permanent minority dependent for political participation on the mercy of Hindus and to eventually absorb them in the Hindu fold, destroying their distinct religious and cultural personality. The belief of the Muslim elites was not the product of hallucination or a persecution complex; instead, it was based upon the persistent refusal of the [non-confessional, but Hindu-dominated] Congress leadership to accommodate Muslim demands and mitigate Muslim fears of being reduced to a nation of hewers of wood and drawers of water in the land of their birth.[ 137] In the decade leading up to the partition of India in 1947, the pro-independence Muslim League began introducing symbols of statehood, including a flag and an anthem, and adorning the Muslim League National Guards with such trappings. The intent and effect was to define the Muslim League as both the expression and guarantor of the cultural identity of the Indian Muslims. 138 Again, the self-protective motive seems uppermost.

ii. Economy

Ada Aharoni, The Forced Migration of Jews from Arab Countries, Historical Society of Jews from Egypt (August 2002), available at http://www.hsje.org/forcedmigration.htm. 136 Nasir Islam, Islam and National Identity: The Case of Pakistan and Bangladesh, 13 Intl J. Middle East Stud. 55, 56 (1981). 137 Saleem M.M. Qureshi, Pakistani Nationalism Reconsidered, 45 Pacific Aff. 556, 559 (1972/73). 138 David Gilmartin, Partition, Pakistan, and South Asian History: In Search of a Narrative, 57 J. Asian Stud. 1068, 1082 (1998) (citation omitted). 40

135

Second, apart from the desire to preserve a peoples existence, demands for separate statehood may arise because it is thought that statehood would bring economic advantages. This thesis has been advanced by Paul Collier and Anke Hoeffler. 139 Collier and Hoeffler posit two main assumptions. First, following the lead of Benedict Andersons classic 1983 study of nationalism, Imagined Communities, 140 they assume that the common identity of groups large enough to form a people or a nation must be imagined, because such groups will be far too large to permit the kind of social interactions that characterize a true community. Positing this assumption opens the way for arguing that peoples and nations do not have a genuine historical existence, but are constructed by intellectuals, scholars, artists or political entrepreneurs seeking their own advancement by mobilizing violence or votes. 141 Second, following J.M. Buchanan and R.L. Faith, 142 they posit that when a relatively rich minority finds that it would be better off economically if it could redraw the boundaries of the jurisdiction that taxes it, it will attempt to do so, provided that the group is spatially concentrated. (In other cases, the minority will likely emigrate the phenomenon of tax exit). Combining these two premises, Collier and Hoeffler argue that secessionist political communities invent themselves when part of the population perceives secession to be economically advantageous. 143 There greatest risk of secessionist demands occurs when three conditions are met: a low level of per capita income (for which a low educational level can serve as a proxy); a slow rate of income growth; and a high dependency on commodity exports. The last factor is especially

See Paul Collier and Anke Hoeffler, The Political Economy of Secession (Dec. 23, 2002), available at [website]. 140 See Benedict Anderson, Imagined Communities: Reflections on the Origin and Spread of Nationalism (revd ed. 2006). 141 In this regard, Collier and Hoeffler unlike Mearsheimer -- obviously assume a soft view of ethnicity. 142 See J.M. Buchanan and R.L. Feith, Secession and the Limits of Taxation: Toward a Theory of Internal Exit, 77 Amer. Econ. Rev. 1023 (1987). 143 Collier and Hoeffler, Political Economy of Secession, supra, at 3. 41

139

important. The discovery of natural resources, or the sudden increase in their value, can trigger a demand for secession from a group that would be enriched if it could capture those resources and exploit them for its own benefit. Primary commodity exports (such as oil) also can be used to finance a rebellion; and if the rebel forces are recruited in circumstances of slow growth and low per capita income, they will buy larger armies. Governments will also be weakened to the extent that rebel forces succeed in wresting natural resources away from them. In high-income, rapidlygrowing economies, secession is more likely to be pursued by political rather than military means. Collier and Hoeffler illustrate their thesis by reference to several historical examples, including the failed secessionist attempt in Katanga, the failed breakaway of Biafra from Nigeria, and the rise of Scottish nationalism between 1970 and 1976 (a period in which the value of the oilfields off the Scottish coast soared). Other cases that appear to support their analysis are provided by southern Sudan, Indonesia and the former Yugoslavia. As Collier and Hoeffler note, the population of South Sudan does not have a common ethnic identity, and indeed there has been civil war within the region (as well as with northern Sudan). The discovery of substantial oil wealth in South Sudan in the 1960s (on their view) accounts for the south Sudanese demand for independence, especially now that conditions exist which may make it possible to extract the oil. Likewise, independence movements in parts of Indonesia (such as Aceh and Papua) are driven by the desire to wrest control of those areas rich natural resources in oil and gas away from the Indonesian state. 144 Finally, Slovenias secession from the former Yugoslavia is viewed from this angle as a form of tax exit: Slovenia was the richest and most developed republic in the Yugoslav federation, and was unwilling to be taxed in order to subsidize a Greater Serbia program. One problematic case for Collier and Hoeffler is that of the Confederate States. They argue that the heavily industrialized North imposed high protective tariffs throughout the Union in
144

See Aspinall and Berger, The Break-up of Indonesia?, supra at 1015 (Papua); id. at 1017 (Aceh). 42

1860, to the economic detriment of the South, which was dependent on the export of cotton. The Souths secession, on their analysis, was largely driven by the desire to escape this economic burden. While others have also offered this account of the origins of the American Civil War 145 and the importance of the tariff struggle may be underplayed, the fact remains (as Collier and Hoeffler admit) that slavery was a critical issue. Finally, Collier and Hoeffler admit that their theory does not account for all cases. The secession of Slovakia, they say, radically contradicts our thesis, because Slovakia was the poorer section of Czechoslovakia and thus stood to benefit from subsidization by the federation. In economic terms, Slovakia made a serious mistake by seceding. 146 The desire to avoid taxes or other forms of economic disadvantage also seems unlikely to explain some cases of national

merger (as opposed to secession): West Germany actively sought reunification with East Germany
in 1989-90, although it was apparent that East Germany was much poorer and that reunification would impose heavy costs for the West. Reference to national or ethnic sentiment as distinct from concern with economic benefits or burdens is necessary to account for at least some recent redrawing of international boundaries. The stakes in the secession of Croatia from the former Yugoslavia were different from and higher than those in Staten Islands efforts to secede from a heavily taxed New York City. 147 Ernst Renan, whose celebrated lecture Quest-ce quune nation?

See Thomas DiLorenzo, The Real Lincoln: A New Look at Abraham Lincoln, His Agenda, and an Unnecessary War (2003). 146 Collier and Hoeffler, Political Economy of Secession, supra, at 23. It was in fact understood by both Czech and Sloval voters that the separation would have negative economic consequences . . . with Slovakia carrying the heavier burden in the short run at any rate. Stein, Czecho/Slovakia, supra, at 306. Nonetheless, the Slovak view was that status in society . . . prevails over economics. Id. at 306. 147 See Joseph P. Viteritti, Municipal Home Rule and the Conditions of Justifiable Secession, 23 Fordham Urban L. Rev. 1 (1995). 43

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(1882) is a classic study of nationalism, was right to affirm that nation-states are not merely associations based on common interests: a Zollverein is not a patrie. 148

iii. Language and culture

As we have seen, Max Weber took the view that a nation was a community of sentiment that normally tended to produce a state of its own. The reasons why nations exhibit a tendency to independent statehood often have as much to do with their flourishing as with their survival. Nations are, as Weber says, communities of sentiment. Nations (or peoples) are bound together by ties of language, culture, history, myth, tradition, custom, religion or territorial homeland; they may also ascribe a common origin and ancestry to themselves (as in Japan). These sentiments, particularly perhaps in circumstances of modernization, are apt to be exceptionally powerful; some would go so far as to say (much more controversially) that they were primordial. 149 In a celebrated essay, the anthropologist Clifford Geertz contrasted the secular, civil ties of the political order emerging in post-colonial Africa with more primordial attachments. He wrote: By a primordial attachment is meant one that stems from the givens or more precisely, as culture is inevitably involved in such matters, the assumed givens of social existence . . . . These congruities of blood, speech, custom and so on, are seen to have an ineffable, and at times, overpowering coerciveness in and of themselves.[ 150] Whether or not these givens are truly primordial or rather (as Geertz suggests) are

believed or felt to be such, there is no question but that they are often overpoweringly coercive
indeed. For example, millions of Americans felt the strength of such attachments in the aftermath
The full quotation is: The community of interests makes for commercial treaties. In nationality there is an aspect of sentiment; it is at once soul and body; a Zollverein [customs union] is not a patrie [fatherland]. Quoted in Arash Abizadeh, Historical Truth, National Myths and Liberal Democracy: On the Coherence of Liberal Nationalism, 12 J. Pol. Phil. 291, 292 (2004). 149 See Umut zkirimli and Steven Grosby, Nationalism Theory Debate: The Antiquity of Nations?, 13 Nations and Nationalism 523 (2007) (debating primordialism). 150 Clifford Geertz, The Interpretation of Cultures 259-60 (1973) (reprinting The Integrative Revolution: primordial sentiments and civil politics in the new states (1961)). 44
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of the attacks of September 11, 2001. Attacks that were perceived as a threat to our collective existence produced an intensified sense of solidarity and an emphatic affirmation of our given ties to one another. The bare existence of vital congruities, however, does not of itself explain the drive to transform a community of sentiment into a state. Why should such a community want (so to say) to cover itself with the roof of statehood? The question was posed in the nineteenth century by the leading German historian Friedrich Meinecke, who attempted to explain Germanys transformation from a Kulturnation (culture-nation) into a Staatsnation (state-nation or political-nation). 151 To begin with, one should observe that not all nations apparently capable of separate statehood do in fact desire it. 152 The Catalans of Spain and the Qubecois of Canada seem content to remain within a larger polity that they do not dominate. The nineteenth century historian Simon Dubnow advocated social and cultural autonomy for the Jewish people within a multinational state, though only because he believed that [i]n view of its conditions in the Diaspora, Jewish nationality cannot strive for territorial or political isolation. 153 Nonetheless, in other circumstances, the felt need to protect and promote the Kulturnation turns into a demand for a

Staatsnation. Statehood is desirable because it is thought to be necessary, or at least extremely

helpful, to the ends of a thriving Kulturnation. It is not hard to see why the demand for separate statehood should arise, particularly when the group in question feels itself to be the object of oppression within an existing state and finds

See Friedrich Meinecke, Cosmopolitanism and the National State 10-11 (Robert B. Kimber trans. 1970 [1907; translation based on 7th German ed. 1928]). See also Henry Pachter, Masters of Cultural History II Friedrich Meinecke and the Tragedy of German Liberalism, 43 Salmagundi 12, 15 (1979). 152 Hroch, National Self-Determination from a Historical Perspective, supra, at 291 (theories of nationalism[] which define national goals as a struggle for independence[] do not correspond to empirical facts). 153 Dubnow, Nationalism and History, supra, at 136. 45

151

that the ruling lites within that state are unwilling to provide it with relief. Separate statehood is likely to serve both protective and expressive goals. Above all, perhaps, separate statehood is desired to ensure that the group in question can order its collective life as the national community decides best. Thus, the Preamble to the 1973 Constitution of Pakistan recites one of the chief purposes of that document to be the foundation of a state Wherein the Muslims shall be enabled to order their lives in the individual and collective spheres in accordance with the teachings and requirements of Islam as set out in the Holy Quran and Sunnah.[ 154] The more specific advantages of statehood are numerous. For example, statehood would enable the group to obtain control over public education, which in turn would ensure that it could preserve and reproduce its language, culture, historical memories and traditions and, in suitable cases, religious faith. As Ernest Gellner wrote: At the base of the modern social order stands not the executioner but the professor. Not the guillotine, but the (aptly named) doctorat dtat is the main tool and symbol of state power. The monopoly of legitimate education is now more important, more central than is the monopoly of legitimate violence.[ 155] Furthermore, statehood brings with it the power to celebrate or sponsor the groups history, culture and identity in highly visible and public ways, including establishing the groups language as the official language of the state; instituting public ceremonies and holidays; erecting museums, 156 monuments and other works of architecture; commissioning murals; 157 maintaining

Available at http://www.pakistani.org/pakistan/constitution/preamble.html. Gellner, Nations and Nationalism, supra, at 34. 156 For example, Stockholms Vasa Museum, which is dedicated to housing Swedens magnificent seventeenth century warship The Vasa, promotes Swedens national self-image as a leader in the arts of peace, and no longer those of war. See generally John G. Arrison, Time Capsule From the 17th Century: Stockholms Vasa Museum, 35 Tech. & Culture 158 (1994). 157 Consider, e.g., the great murals by Diego Rivera on the walls of the large stairway of the National Palace in Mexico City, designed to present a panoramic, nationalist history of Mexico from pre-Columbian times to the twentieth century. See Leonard Folgarait, Revolution as Ritual: Diego Riveras National Palace Mural, 14 Oxford Art. J. 18 (1991).
155

154

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national airlines and airports; 158 naming cities, streets and ships; issuing paper currency, coins and postage stamps; devising emblems, anthems and flags. Statehood also attracts international recognition from other states, enabling the state, through groups political representatives, to take part in international diplomatic conferences, trade negotiations, athletic competitions and beauty contests; 159 to join military alliances or free trade zones; to qualify for foreign aid or to issue sovereign bonds. Further, though it may matter less than before, separate statehood confers certain military advantages on the group, including the ability to recruit highly motivated troops and in some cases to secure the protection of naturally defensible borders. 160 An ethnic or national group that demands separate statehood may also be seeking to privilege itself legally and constitutionally within that new state. Such privileging may be a matter simply of formal recognition of the group as having a special place in, or historical relationship to, the state or its territory; or it may be more substantive, conferring special legal rights on the newly dominant group (e.g., citizenship), and imposing legal liabilities on other groups. In the wake of the collapse of Communism in East-central Europe and the Baltics, new (or re-emergent) postCommunist states of that region adopted constitutions that proclaimed the existence of a dominant national people, with the implication that other citizens were unequal a development that has
For example, the Ben Gurion Airport near Tel Aviv is a powerful and moving commemoration of Jewish history. 159 Beauty queen Keriman Manlis, who won the international Miss World contest in 1932, was (in the judgment of Mustafa Kemal, President of Turkey and founder of the modern Turkish state) an exemplar of the exquisitely preserved beauty of the Turkish race . . . . [She] not only presented the new Western face of Turkey to the civilized world but also embodied the truth of the official version of Turkish history. Hanioglu, Atatrk, supra, at 212. 160 Literacy, a shared culture and a common language, particularly in mass warfare, may contribute to the cohesion and effectiveness of a States military forces. The ineffectiveness of the Austro-Hungarian Army in the First World War underscored the risks that heterogeneity would create military vulnerability. See Barry Posen, Nationalism, the Mass Army, and Military Power, 18 Intl Sec. 80, 85 (1993). Furthermore, some of the minorities in the Austro-Hungarian forces were thought to be, or were, unreliable: the High Command treated Czechs, Serbs, Ukrainians and Romanians with suspicion and, on some occasions, entire Czech regiments surrendered to the enemy. See Istvn Dek, The Ethnic Question in the Multinational Habsburg Army, 1848-1915, in N.F. Dreizinger (ed.), Ethnic Armies: Polyethnic Armed Forces from the Time of the Habsburgs to the Age of the Superpowers 21, 43 (1990). 47
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been characterized as constitutional nationalism. 161 For example, the Slovak Constitution was amended in 1992 to change the opening words from We, the citizens of the Slovak Republic to We, the Slovak nation. The latter formulation seemed to imply that Slovakia belonged only to the Slovaks. 162 On the other hand, some of the constitutions of these new states at least professed to place minorities on an equal basis as founders with the now-dominant group. 163 I have been seeking to explain the drive towards statehood chiefly from the perspective of the national or ethnic group from the top-down perspective, so to say, rather than bottom-up. But, as the Canadian philosopher Charles Taylor has shown, it should also be understood from the perspective of the individual, especially in light of the central importance that language and culture have come to have in determining the personal identity of individual subjects in postRomantic thought. On this argument, each of us has a right to develop our personal identity and through that development achieve our full humanity. But our identities are largely dependent on the (primary) language we speak: we cannot even begin to frame the project of self-realization other than through the medium of a language. But a language is itself embedded in and inextricable from a culture. Our identities therefore must depend on the culture and community we share with our fellow language speakers. Thus, a French Canadian realizes his or her identity largely through the French language and the practices of Qubecois culture through participation

See Robert H. Hayden, Constitutional Nationalism in the Formerly Yugoslav Republics, 51 Slav. Rev. 654, 655, 658-63 (1992). 162 Carol Skalknik Leff, The Czech and Slovak Republics: Nation Versus State 164 (1997). 163 For example, the Preamble of Constitution of Croatia, after reciting key episodes in the history of the Croatian people, reads: the Republic of Croatia is hereby established as the national state of the Croatian people and a state of members of other nations and minorities who are its citizens: Serbs, Muslims, Slovenes, Czechs, Slovaks, Italians, Hungarians, Jews and others, who are guaranteed equality with citizens of Croatian nationality and the realization of ethnic rights in accordance with the democratic norms of the United Nations and countries of free world. Available at http://www.constitution.org/cons/croatia.htm. 48

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in a distinct and recognizable way of life. If that linguistic and cultural environment wanes or dies away, those individual who identify themselves with it and in its terms will be denied the possibility of becoming full human subjects. The possibility of such an achievement is not guaranteed solely by an individual right to use the French language, e.g., in dealings with the federal Canadian legal system; it also requires a collective language right in the Qubecois community to what is needed to keep its language and culture healthy and vital. (Indeed, this is particularly true of a rather threatened minority linguistic community like the French Canadians, who find themselves surrounded by a vastly greater number of speakers of the worlds dominant language.) To be sure, individuals may reject or dilute their home culture, assimilate into another culture, or (as Waldron emphasizes) adopt multiple identities, aside from or in addition to their original one. Furthermore, the boundaries of a culture are not fixed and determinate, like national territorial boundaries, but fluid and shifting. 164 But for many, perhaps most, of those born, reared and living in a linguistic and cultural community like that of French Canada, that community is likely to be an important, if not crucial, pole of their personal identity. Accordingly, they have a powerful interest in ensuring that that community remains viable, indeed a right to the conditions of its continued existence and flourishing, and to achieving its place among the peoples of the earth. And those conditions may well include autonomy, or even national sovereignty. 165 III. How are nationalist demands for separate statehood to be evaluated? We may turn, finally, to evaluating the demand of minority nationalities for separate statehood. The question has two aspects, corresponding roughly to the statist interests of policymaking and the cosmopolitan concern with norms. First, how should such demands be
See, e.g., Martin Shaw, Theory of the Global State: Globality as an Unfinished Revolution 56 (2000) (Cultural boundaries are necessarily indeterminate; they are transgressed every time people make changes in their lives [such as] marrying someone from a different background). 165 See Charles Taylor, Why Do Nations Have to Become States? in Charles Taylor (ed. Guy Laforest), Reconciling the Solitudes: Essays on Canadian Federalism and Nationalism 48-58 (1993). 49
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viewed from a policy perspective, taking account of state practice and international law? I will consider that issue from the perspective of U.S. policymaking, in particular as it relates to contemporary Africa. Second, more abstractly, should we have a normative bias for or against such demands?

i.

International Law and State Policy

International law on the question of separate statehood for minority nationalities is meager and unhelpful. Article 1(2) of the United Nations Charter proclaims that one of the main purposes of the Charter is [t]o develop friendly relations among nations based on respect for the principle of equal rights and self-determination of peoples. As we have seen, the U.N. General Assembly in 1970 laid down the principle that [t]he establishment of a sovereign and independent State, the free association or integration with an independent State or the emergence into any other political status freely determined by a people constitute modes of implementing the right of self-determination by a people. 166 The International Court of Justice (ICJ) affirmed in East

Timor (Portugal) v. Australia (1995) that the rights of peoples to self-determination was one of
the essential principles of contemporary international law, rising to the level of an erga omnes obligation. 167 And in Reservations to the Convention on Genocide (1951), the ICJ affirmed that the denial of the right of existence of entire human groups . . . shocks the conscience of mankind and results in great losses to humanity, and which is contrary to moral law and to the spirit and aims of the United Nations. 168 But although the rights of national minorities to exist, to enjoy equal rights with national majorities, and even to determine their own condition are established in international law, it by no means follows that they have a right to separate statehood. Further, even though (as we have seen) international law supported decolonization and, with it, the formation of
166 167

Declaration on Principles of International Law Concerning Friendly Relations, U.N. G.A. Res. 2625, supra. East Timor (Portugal) v. Australia, Judgment (June 30) [1995] I.C.J. Reports 90 at 29 (citing precedents). 168 Advisory Opinion, I.C.J. Reports [1951] 15, 23. 50

new states from the former European empires, that period is now over. We have little legal guidance from United Nations organs or international courts that is directly applicable to current circumstances. Although the International Court of Justice had an opportunity in the 2010 Kosovo case to elucidate the nature of the right to self-determination, it declined to seize it, saying: The Court has already noted . . . that one of the major developments of international law during the second half of the twentieth century has been the evolution of the right of selfdetermination. Whether, outside the context of non-self-governing territories and peoples subject to alien subjugation, domination and exploitation, the international law of selfdetermination confers upon part of the population of an existing State a right to separate from that State is, however, a subject on which radically different views were expressed by those taking part in the proceedings and expressing a position on the question. Similar differences existed regarding whether international law provides for a right of remedial secession and, if so, in what circumstances. There was also a sharp difference of views as to whether the circumstances which some participants maintained would give rise to a right of remedial secession were actually present in Kosovo. The Court considers that it is not necessary to resolve these questions in the present case.[ 169] Thus, as one recent commentator observes, the right of self-determination remains one of the most important but enigmatic principles of international law. 170 Nonetheless, as the same commentator also observes, [t]he preferred self-image of international law is undoubtedly cosmopolitan rather than nationalist. 171 Likewise, John Yoo notes that international law affords no means to analyze whether to promote or retard decentralization, and in fact seems to follow a presumption against the breakup of states. 172
169

Accordance with International Law of the Unilateral Declaration of Independence in Respect of Kosovo, supra, at 82-83. Judge Bruno Simmas Separate Opinion (at 7) sharply criticized the Court for its narrow and unilluminating opinion:

I believe that the General Assemblys request deserves a more comprehensive answer, assessing both permissive and prohibitive rules of international law. This would have included a deeper analysis of whether the principle of self-determination or any other rule (perhaps expressly mentioning remedial secession) permit or even warrant independence (via secession) of certain peoples/territories. 170 Summers, Right of Self-Determination, supra, at 325. 171 Id. at 327. 172 Yoo, Fixing Failed States, supra, at 131. 51

State practice, although inconsistent, is also generally unsympathetic to nationalist movements seeking separate statehood. (That is not surprising, given that so many states face the risk of secession themselves: the reluctance of most members of the international community to support separatism is a form of reciprocal insurance.) The United States, e.g., originally opposed the break-up of the Soviet Union, but then came to accept it. At about the same time, the United States led an international coalition into war against Saddam Husseins Iraq, for the stated purpose of protecting Kuwaits existing boundaries and rolling back Iraqs attempt to revise them by force. Thereafter, the United States accepted, for the most part, the disintegration of the former Yugoslavia and the emergence of new states along (effectively) ethnic lines; but it resisted efforts by the Serb minority in Croatia to establish its own state, and actively assisted, by military, political, and legal means, Kosovos secession from Serbia. In more recent years, the United States has sought to preserve unitary statehood in Iraq and Afghanistan, despite strong centrifugal forces. Throughout this period, as Yoo observes, the United States does not seem to have employed an analysis which distinguishes between cases in which decentralization should be favored and cases in which previous borders should be maintained. 173 If the United States seemingly erratic policy has an underlying logic, it is surely one driven by strategy and power politics rather than by legal or moral principle. Consider the case of Iraq, where U.S. policymakers resisted arguments in favor of partitioning the country into three separate states: a Shiite-dominated south; a Sunni center; and a Kurdish north. 174 Given that Iraq was itself an arbitrary confection designed to serve the immediate interests of British and French

Yoo, Fixing Failed States, supra, at 131. See, e.g., John C. Yoo and Robert J. Delahunty, Lines in the sand, in 87 The National Interest 28 (2007). For the argument that Kurdistan in particular should have separate statehood, see Philip S. Hadji, The Case for Kurdish Statehood in Iraq, 41 Case W. Res. J. Intl L. 513 (2009).
174

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imperialism, 175 and given also the intense antagonisms of Iraqs Shiite, Sunni and Kurdish populations towards each other, there might seem to be little reason to insist on maintaining Iraqs existing territorial boundaries. Nonetheless, it is possible to understand why U.S. policymakers should have decided against partition. First, they may have hoped that a unified Iraq could again serve (as it had under Saddam Hussein) as a counterweight to Iranian influence in the Persian Gulf. On the other hand, partition could create a weak Shiite state that would be vulnerable to (Shiite) Iranian dominance. Second, they may have feared that partition would deny the Sunni minority a share in the countrys oil wealth, leading to the further radicalization of that element of the Iraqi population, causing deeper resentment against the loss of the traditional Sunni ascendancy, and making further penetration of the Sunni population by al Qaeda more likely. Third, they likely believed that an independent Kurdistan would be a destabilizing force in the Middle East, aggravating Kurdish separatist demands in Turkey, Syria and Iran. 176 Fourth, they may have thought that stabilizing a democratic, multi-ethnic state in which Shiites and Sunnis lived together peaceably would have salutary demonstration effects for the rest of the Middle East. Finally, the different groups were intermingled at certain key places in Iraq (including Baghdad), making non-violent ethnic separation highly unlikely. In the case of Kosovo, the strategic calculus produced the contrary result. U.S. policymakers apparently concluded that independence for Kosovo would help to prevent the renewal of the massacres that had occasioned U.S. military intervention in 1999. Further, satisfaction of the Albanian Kosovars insistence on independence might preempt more extreme

See, e.g., Toby Dodge, Inventing Iraq: The Failure of Nation Building and a History Denied (2003). Even though Iraqi Kurdistan formally remains part of a unitary Iraqi state, it has tended to go its own way, and has indeed supported Kurdish separatism elsewhere. See Morton Abramowitz, The Kurdish Problem, in The National Interest (2011), available at http://nationalinterest.org/commentary/the-kurdishproblem-5818. On Turkeys fears that the United States might have supported Kurdish secessionism, see Hugh Pope, Turkeys Minority Report, 6 Geo. J. Intl Aff. 95, 101 (2005).
176

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demands for a radical-Islamist state, and contribute to the ongoing Western project of making a satellite of Kosovo. An independent Kosovo could also serve as a check on any resumption of Serb expansionism in the region. It was a potential drawback that recognizing Kosovos independence would create a destabilizing precedent in other regions (as it did in South Abkhazia); but this risk was countered with the (weak) legal and diplomatic argument that Kosovos case was unique. In general (as the case of Kosovo shows), the United States strategic needs do not always dictate resistance to the emergence of new states. Strong U.S. backing for the secession and independence of Kosovo, and more recently of South Sudan, show that the United States is prepared, for both strategic and humanitarian reasons, to support nationalists demands for separate statehood. These measures show a very welcome flexibility and open-mindedness on the part of U.S. policymakers. The United States should not harbor a powerful bias against such demands. Our leaders should not repeat gaffes like Bushs Chicken Kiev speech out of mindless hostility to nationalism. In that light, U.S. policymakers should perhaps reconsider some longstanding policies. For example, the United States and the international community at large have long opposed the claim to independence of the Turkish Republic of North Cyprus, which was born in a military invasion of the island of Cyprus after an abortive 1974 coup dtat that sought to annex the island to Greece (then under the rule of a military junta). 177 Turkeys intervention resulted in the partition of the Island into an ethnically Turkish enclave and an ethnically Greek independent republic. On the other hand, the United States has not supported the claims of the Kurdish nationalist movement in

See Security Council Resolution 541 (1983); Security Council Resolution 550 (1984). For an analysis of the issue, see Suzanne Palmer, The Turkish Republic of Northern Cyprus: Should the United States Recognize It As An Independent State?, 4 B.U. Intl L.J. 423 (1986) (recommending against U.S. recognition). 54

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Turkey for a separate state (or an amalgamated Kurdish state) of its own. 178 Both positions may stem, at least in part, from the statist sense that existing international boundaries are sacrosanct. Yet on the face of it, our policies seem to be exactly the opposite of what they should be: the United States should favor Turkeys protection of the vulnerable Turkish minority in Cyprus, but

support the Turkish Kurds in the efforts to escape from a (for them) repressive rgime. This is not
the place to argue for those outcomes; and there may well be strong reasons to defend the policies as they stand. But mere hostility to nationalism should not be allowed to shape those decisions. Policymakers confront more complicated choices with respect to Africa. Many African states have inherited arbitrary colonial boundaries, and it is often argued that retention of those boundaries would reduce some of the political instability and chronic violence from which the continent suffers. 179 Yet post-colonial African ruling lites have strongly resisted boundary division. As a result, many African states have been and are the scene of conflict between the territorialist nationalism of their rulers, and more ethnically- and regionally-based rebel movements. These rebel movements typically do not aim at secession and eventual independence. In a subtle and searching analysis, Pierre Engelbert and Rebecca Hummel have argued that Africa suffers from a secessionist deficit that is due largely to the difficulty that secessionist movements would encounter in seeking international recognition. 180 On their analysis, the international community

For the background of Kurdish nationalism in Turkey, see C.J. Edmonds, Kurdish Nationalism, 6 J. Contemp. Hist. 87, 89-92 (1971). On the Turkish governments cultural policies towards its Kurdish minority, see Sule Toktas and Bulent Aras, The EU and Minority Rights in Turkey, 124 Pol. Sci. Q. 697, 713-14 (2009/10); Michael M. Gunter, The Kurdish Problem in Turkey, 42 Middle East J. 389, 398-400 (1988). 179 See, e.g., Pierre Englebert, Stacy Tarango and Matthew Carter, Dismemberment and Suffocation: A Contribution to the Debate on African Boundaries, 35 Comp. Pol. Stud. 1093, 1113-14 (2002) (evaluating advantages and disadvantages of boundary retention, boundary dilution through creation of larger regional or federal units, and boundary alteration through formation of different national units). 180 See Pierre Engelbert and Rebecca Hummel, Lets Stick Together: Understanding Africas Secessionist Deficit, 104 African Aff. 399 (2005). 55

178

would improve Africas chances for peaceful development if it were more favorably inclined to secessionism. Roughly, Englebert and Hummel argue as follows. Most other regions of the world display a greater propensity for separatism than Africa. This is odd, given that African states are relatively new and heterogeneous, that many of them possess natural resources that could be used to fund separatist movements, and that they often provide badly for their citizens. On the other hand, in about four decades of independence, some 30 African states have been the scene of nonsecessionist conflict, many of which have been violent and protracted. The explanation appears to be that local political lites, ethnic leaders and other contenders for power confront significant material incentives to avoid demanding regional or ethnic self-determination, but instead are motivated to pursue either local dominance under the aegis of unitary national juridical institutions (brokered, perhaps, by power-sharing arrangements with the center), or else capture of the state as a whole. In either case, the regnant state-sponsored territorial nationalism is not challenged. Engelbert and Hummel argue that territorial nationalism is the product of self-interested discourse created by predatory African lites to legitimize their rule, discredit opponents, and secure the material rewards that come from governing weak states. Weak statehood enables ruling lites to appropriate the states resources for private purposes and use the states instruments for predation. These lites also develop client relationships with people at different levels of society who can market smaller parcels of state authority and use them to extract resources from their fellow citizens. In these circumstances, one would expect to find regional lites and ethnic leaders who are kept out of power by the center attempting to establish their own states. But this is not generally the case: In Africa as elsewhere, regional leaders can be expected to capitalize on local grievances and promote secessions if the potential rewards of a separatist state, in the absence of international recognition, outweigh the potential rewards associated with control or partial
56

recognized sovereignty, tilting the odds for lites in favour of staying within the state, even if they do not immediately benefit from power at the centre.[ ]
181

control of the institutions of the sovereign national state. Assuming African would-be separatists face similar odds of recognition as those in other parts of the world, what essentially distinguishes African lites is the relatively greater material returns to sovereignty that they face. Given the undiversified nature of Africas economies, their lack of industrialization, their dependence on commodity extraction, and their small and parasitic private sectors, the continent offers a significant material premium to internationally

Thus, the prevailing reluctance of the international community to support or recognize separatist movements has the effect, in the particular circumstances of Africa, of incentivizing rebel movements to stay within the state, rather than to seek separate statehood. And that effect, Engelbert and Hummel contend, is bad. First, in their view, international recognition of the sovereignty of existing African states and boundaries reduces pressures for capacity-building, prevents failed institutions from disappearing and allows them to outlive their functional usefulness. The weaker the state, and the greater the reliance on it in the strategies of accumulation of lites, as in Africa, the more important is this dimension of sovereignty. 182 Second, state agents derive domestic power from the evidence of their international legitimacy, which facilitates their instrumentalization of the state and predatory activities. . . . [G]overnments [may] present predation as policy, which shields it somewhat from challenges. 183 Third, international recognition of existing states and boundaries also shields weak governments from outside interference, as they can raise the principle of non-intervention in their domestic affairs against outside attempts to check their excesses. 184 Fourth, international recognition qualifies rgimes for official development assistance and facilitates foreign direct investment, offering national rulers still further opportunities for personal gain. In sum, the benefits of weak sovereign statehood for lites and their clients promote a territorially-based, rather than secessionist or
181

Id. at 412 (emphasis added). Id. at 413. 183 Id. at 413. 184 Id. at 414.
182

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revolutionary, outlook. On the other hand, leaders of ethnically, linguistically or culturally distinct groups or regions that are victimized by the state and that would initially prefer secession find it hard to pursue sustainably separatist strategies in Africas commodity-dependent and sovereigntyconstrained environment. With international recognition elusive, they . . . derive[e] greater benefits from joining national unity governments than from continuing their original struggle. 185 Accordingly Engelbert and Hummel conclude that Africas secessionist deficit may well contribute to its underdevelopment. 186 First, the continuing dominance of territorial nationalism and the hostility to secessionism create a context favorable to continuing lite predation. African countries are maintained so that they can be taken apart. 187 Second, international policy biased towards the status quo undermines the emergence of forces that could contribute towards greater institutional accountability and better governance. . . . Should the international community substitute a norm of institutional effectiveness for the currently prevailing one of post-colonial territorial continuity. . . African lites could find benefit in the promotion of regional rather than national levels of social aggregation. 188 Finally, post-colonial [territorial] nationalism produces ethnic polarization, which results in social conflicts and retards development. . . . African nationalism engenders ethnicity. 189 Rather than using ethnic differentiation to determine access to the resources of the state, it would be better if it were mobilized to challenge state lites continuing control over the disposition of those resources. Assuming the soundness of Engelberts and Hummels analysis (a question for others to decide), several consequences for U.S. policymakers seem reasonably clear. First, at least in Africa, the United States should not be vehemently predisposed to favor the retention of the
Id. at 417. Id. at 424. 187 Id. at 424. 188 Id. at 424. 189 Id. at 425.
185 186

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national boundaries created by decolonization. It would do well not to support (territorial) nationalism of a kind fabricated by national lites, however inclusionary or civic such nationalism on its face might seem to be. Neither should it withhold support from separatist movements solely because of their apparently ethnic or tribalist character. In the peculiar circumstances of Africa, encouragement of what seem to be more exclusionary movements may well serve the interests of ordinary Africans better than support for the more inclusionary governments that they oppose.

ii. Norms
I shall conclude with several general, but brief, comments of a normative character, addressed particularly to cosmopolitans. First, the cosmopolitan devaluation of nationalism is typically uncritical, unreflective, and unhistorical. Nationalism has been and remains a force both for good and for evil. To pronounce an unfavorable judgment on all forms of nationalism Masaryks peaceful version as well as Hitlers aggressive one, Francos conservative kind and Atatrks modernizing variant is absurd. As the historian Alfred Cobban rightly remarked, neither approval nor disapproval is very relevant to something that might be regarded, at least for our time, as a natural force, a mighty torrent which is equally capable of serving the purposes of man or destroying him. 190 Likewise, cosmopolitan critics of the nation-state should ask themselves whether genuinely democratic politics are realistically possible at levels well above the nation-state, and even whether such democracy as currently exists could be sustained in the absence of any nationalist feelings. As the distinguished Canadian philosopher Charles Taylor has argued, we need patriotism as well as cosmopolitanism because modern democratic states are extremely exigent common enterprises in self-rule. They require a great deal of their members, demanding much greater solidarity toward
190

Cobban, Nation State and National Self-Determination, supra, at 17. 59

compatriots than toward humanity in general. We cannot make a success of these enterprises without strong common identification. 191 Second, where the survival of ethnic or religious minorities is at risk within a particular state or such minorities have suffered and continue to suffer from severe governmental or governmentsupported persecution, then the international community ought to look favorably on the demands of such minorities for political or administrative self-determination within that state or even for a separate state of their own, if the creation of such a state is reasonably practicable and the new state would be viable on its own. Kosovo and South Sudan are recent cases directly on point; Bangladesh (1971) is an earlier case. 192 If what is at risk is the cultural or linguistic survival of the minority rather than its physical existence, the international community may be more restrained in its support of the minority. That is particularly true if the minority has a fair opportunity to seek redress of its grievances and secure linguistic and cultural protection within the framework of its existing state, e.g., through political negotiation and democratic elections. Nonetheless, the protection of such minorities has long been, and should remain, a legitimate matter of international concern. Furthermore, if the secession can be accomplished peaceably, as in Slovakia, the international community should not discourage it even if the grievances of the minority seeking secession seem comparatively slight and the majority is not unreasonably damaged by the secession. Third, in any case, the uti possidetis principle should not trump all other considerations, or even consistently be the single most important consideration, in determining the international

Charles Taylor, Why Democracy Needs Patriotism, in Cohen, For Love of Country, supra, at 120. See also Roshwald, Endurance of nationalism, supra, at 257-58; Lars-Erik Cederman, Nationalism and Bounded Integration: What It Would Take to Construct a European Demos, European University Institute Working Papers 8 (2000), available at [cite] ([A] demos is more than a mere aggregation of individuals. There has to be a sense of community, a we-feeling, however thinly expressed, for democracy to have any meaning.). 192 See Nicholas J. Wheeler, Saving Strangers: Humanitarian Intervention in International Society 55-77 (2000). 60

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communitys attitudes towards boundary revision. As Steven Ratner has rightly observed, the extension of the uti possidetis principle to modern breakups leads to genuine injustices and instability by leaving significant populations both unsatisfied with their status in new states and uncertain of political participation there. By hiding behind inflated notions of uti possidetis, state leaders avoid engaging in the issue of territorial adjustments even minor ones which is central to the process of self-determination. 193 Ratner correctly points out that the application of the uti

possidetis principle to the former Yugoslavia prevented a debate over what boundaries should be
drawn and endangered the minorities left behind. Likewise, the mechanical application of the uti

possidetis principle to post-colonial Africa seems likely to do more harm than good.
Fourth, the international community ought to be concerned with the fate of minorities within new states that have emerged as a result of secession or partition. This concern does not

always have to take the form of attempting to ensure legal protection for them within the new state,
however. In (say) the case of the Kosovar Serbs who fled or were forced to flee Albaniandominated Kosovo after 1999, the best use of the international communitys influence and resources could well have been to assist their safe relocation into Serbia or their resettlement in the West, together with the payment of compensation for their lost properties. 194 Furthermore, the
193

Steven R. Ratner, Uti Possidetis and the Borders of New States, 90 Am. J. Intl L. 590, 591 (1996). Ethnic cleansing of a civilian population in wartime is a crime against humanity under international law. For a detailed account of the elements of the crime and a survey of the relevant precedents, see Prosecutor v. Staki, Appeals Chamber, International Criminal Tribunal for the former Yugoslavia, Judgment (March 22, 2006) at pp. 90-101, 274-308. See also Rome Statute of the International Criminal Court, Art. 7(d) (making deportation or forcible transfer of population a crime against humanity when committed as part of a widespread or systematic attack directed against any civilian population, with knowledge of the attack); Updated Statute of the International Criminal Tribunal for the former Yugoslavia, Art. 5(d) (2009); First Interim Report of the Commission of Experts Established Pursuant to Security Council Resolution 780 (1992), Feb. 10, 1993, U.N. Doc. S/25274 at 55-56; William A. Schabas, Genocide, Crimes Against Humanity, and Darfur: The Commission of Inquirys Findings on Genocide, 27 Cardozo L. Rev. 1703, 1708-09 (2005/6).
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However, it is not so clear that the resettlement of members of a threatened ethnic minority (such as the Kosovar Serbs) for the sake of their own safety or in order to avoid further inter-ethnic 61

international community should not presume that a minority that has been left behind after secession or partition will be persecuted or abused by the new state, even if the new state is dominated by an ethnic or religious group that was a traditional opponent of that minority. The case of the Irish Protestant minority in the independent, Catholic-dominated Irish Free State shows that such a minority may accommodate itself to its new environment and even flourish in it. 195 Rather than starting out with a bias against partition or secession because it would leave behind a new, insecure minority, the international community should evaluate each case on its own. Finally, policymakers, scholars and analysts alike should be neither fearful nor dismissive of popular nationalism. Each of the three dominant political forces of the twentieth century liberalism, socialism and nationalism may still be needed to correct and counter-balance the excesses of the other two. In Poland and Czechoslovakia in the 1980s, nationalists joined with liberal supporters of civil society and free markets to overturn one-party states created in the name of socialism. That outcome was salutary. But a generation later, the almost uncontested global dominance of neo-liberal economic policies has given rise to severe and deepening inequalities in

violence, even if involuntary, violates international law; and the argument that it does not would surely be strengthened if the resettlement were undertaken by agents of the international community, provided the displaced persons with some choice of where to be resettled, and furnished just compensation for losses. See generally Maria Stavropoulou, The Question of a Right Not to be Displaced, 90 Am. J. Intl L. 549, 552 (1996) (When interpreted and drawn together, human rights standards provide that evictions, transfers, relocations or expulsions cannot be invidiously discriminatory and may be undertaken only in the specific circumstances provided for in international law and on the basis of a specific decision by a state authority expressly empowered by law to do so.). An alternative proposal called for the international community to consider the further partitioning of Kosovo into homogeneous Serb and Albanian regions. Carter Johnson, Partitioning to Peace: Sovereignty, Demography, and Ethnic Civil Wars, 32 Intl Sec. 140, 165-66 (2008). 195 See, e.g., Kurt Bowen, Protestants in a Catholic State: Irelands Privileged Minority (1983). The Irish case can also be cited to show that partition along ethnic or religious lines can prevent or abate (rather than intensifying or relocating) violence. See J.C. Beckett, Northern Ireland, 6 J. Contemp. Hist. 121, 124 (1971) ([B]etween the early 1920s and the late 1960s Ireland enjoyed a longer period of freedom from major internal disturbance than it had known since the first half of the eighteenth century). 62

wealth and income in the worlds leading states, and rebellions against such inequalities are sweeping across the world. From Tunisia to Egypt, from the United States to Great Britain, inequality is cited as a chief cause of revolution, economic disintegration, and unrest. 196 Protests like those in the Arab Spring and the London riots of summer 2011 may eventually spread to China as well: While Chinas overall living standards have improved massively in recent decades, World Values Survey data show an equally large decline in life satisfaction. Researchers credit this unhappiness to ballooning income differences, especially as ostentatious consumption has become more visible. Not Marx, not Keynes, not Adam Smith, but Thorstein Veblen may be the prophet of the hour.[ 197] In this situation, nationalism, with its characteristic emphases on solidarity and citizen engagement, is likely to play an increasingly important role. Popular Chinese nationalism, e.g., may prove to be the vehicle of protest against the rgimes policies of economic liberalization, together with the official corruption and radical inequalities that have accompanied those policies. Likewise, in the Western world, what is usually written off as right-wing, nationalist populism may often prove, on a closer look, to be the voice of legitimate protest against decades of rising inequality, stagnant or declining real wages, mass unemployment, litist indifference and the corruption and abuse practiced by corporate and financial power-holders. 198 If the financial crises

Branko Milanovic, Inequality and its Discontents, in Foreign Affairs (Aug. 12, 2011), available at http://www.foreignaffairs.com/print/67958?page=show. 197 See Thorstein Veblen, The Theory of the Leisure Class (1899) (advocating theory of conspicuous consumption) 198 Intelligent observers on the Left have taken note of these facts. Thus, in a recent column in the leftleaning French periodical Le Monde Diplomatique, Serge Halimi writes that: The far right in France is well aware that the erosion of social inequalities and the decline of public services have undermined its Thatcherite ideology . . . and it is now quite ready to support causes historically associated with the left. . . . [C]ombating the far right does not mean opposing the progressive causes that the far right now ostensibly supports (and distorts). 63

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that began in 2008 persist or worsen, these protests can only grow stronger. When other political institutions have failed, only a nation-state may be able to provide a population with a fire-wall against the devastating economic and financial effects of globalization. Now more than ever, it is necessary to appreciate and foster the positive values in nationalism, if also to remain mindful of its negative ones.

Approximately 25000 words

Serge Halimi, Taking liberties with egality, in Le Monde Diplomatique (June 1, 2001) (English ed.), available at http://www.mondediplo.com/2011/06/01farright. Likewise, Chris J. Bickerton, another columnist for Le Monde Diplomatique, wrote in 2009 that Europes far right movements are more populist than racist. . . . [T]hese groups signal the end of left and right. They express anger, disenchantment and frustration, but not a coherent new ideology or the rebirth of old fascist traditions. . . . Contemporary populism is in part a product of the EUs own preference for taking decisions behind closed doors. Chris J. Bickerton, Europes new politics of hard times, in Le Monde Diplomatique (July 4, 2009), available at http://www.mondediplo.com/2009/07/07europe . 64